[Federal Register Volume 59, Number 177 (Wednesday, September 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22662]


[[Page Unknown]]

[Federal Register: September 14, 1994]


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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. MC-94-22]

 

Safety Fitness Procedure; Safety Ratings

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice and request for comments.

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SUMMARY: In March and December 1993 the FHWA modified its Safety 
Fitness Rating Methodology (SFRM) used to rate a motor carrier's 
compliance with the Federal Motor Carrier Safety Regulations (FMCSRs), 
applicable Hazardous Materials Regulations (HMRs), and to assess its 
operational safety. These modifications incorporated more performance-
based information into the SFRM. Vehicle out-of-service (OOS) rates are 
now used as a first indicator to evaluate a motor carrier's compliance 
with the Inspection, Repair, and Maintenance regulations found in part 
396 of the FMCSRs. A second modification gave more weight to violations 
of the safety regulations which are acute or critical. These 
modifications enable the SFRM to reflect more accurately the regulatory 
scheme set forth in 49 CFR part 385 to determine the safety rating of 
motor carriers.
    Beginning October 1, 1994, violations of the safety regulations 
which are acute or critical will be used to rate each of the five 
regulatory factors when performing a compliance review (CR). On the 
same date the FHWA will discontinue use of the safety review (SR). 
Experience has demonstrated that the CR is a more objective tool for 
measuring a motor carrier's compliance. Although the SR will no longer 
be used, the education and technical assistance aspect of the SR will 
continue to be an important part of the overall motor carrier safety 
program.
    This notice explains the 1993 SFRM changes as well as the changes 
to be implemented on October 1, 1994. This notice also solicits 
comments concerning the forthcoming rating methodology changes, and the 
direction that future modifications should take.

DATES: Comments must be received on or before November 14, 1994.

ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-94-22, 
room 4232, HCC-10, Office of Chief Counsel, Federal Highway 
Administration, 400 Seventh Street, SW., Washington, DC 20590. All 
comments received will be available for examination at the above 
address from 8:30 a.m. to 3:30 p.m. e.t., Monday through Friday, except 
Federal holidays. Those persons desiring notification of receipt of 
comments must include a self-addressed, stamped postcard.

FOR FURTHER INFORMATION CONTACT: Mr. William C. Hill, Federal Programs 
Division, Office of Motor Carrier Field Operations (202) 366-1795, or 
Mr. Charles Medalen, Office of Chief Counsel, (202) 366-1354, Federal 
Highway Administration, 400 Seventh Street, SW., Washington, DC 20590. 
Office hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Information Regarding the Safety Rating Process

    Section 215 of the Motor Carrier Safety Act of 1984 (49 U.S.C. 
31144, formerly 49 U.S.C. App. 2512) directed the Secretary of 
Transportation, in cooperation with the Interstate Commerce Commission 
(ICC), to establish a procedure to determine the safety fitness of 
owners and operators of commercial motor vehicles (CMVs) operating in 
interstate commerce. The Secretary's responsibility was delegated to 
the FHWA.
    The FHWA promulgated a regulation entitled ``Safety Fitness 
Procedures,'' 49 CFR part 385, which established a ``safety fitness 
standard'' that a motor carrier must meet in order to obtain a 
``Satisfactory'' safety rating.
    To meet the ``safety fitness standard,'' a motor carrier must 
demonstrate that it has adequate safety management controls in place 
which function effectively to ensure acceptable compliance with the 
applicable safety requirements. The rule also sets forth the factors 
that will be considered in determining a motor carrier's safety 
fitness.
    The FHWA developed an SFRM which uses data from SRs or CRs, to 
evaluate a motor carrier's safety fitness and to assign one of three 
possible safety ratings (Satisfactory, Conditional or Unsatisfactory) 
to carriers operating in interstate commerce. This process is based on 
49 CFR 385.5, Safety fitness standard, and Sec. 385.7, Factors to be 
considered in determining a safety rating. The process also identifies 
motor carriers needing improvement in their compliance with the FMCSRs 
and applicable HMRs. The safety rating process is used to focus the 
FHWA's limited resources on examining the operations of these motor 
carriers to promote compliance with applicable regulations, which 
reduces the risk of highway accidents and hazardous materials 
incidents. Motor carriers rated as ``Unsatisfactory,'' especially those 
transporting passengers and hazardous materials, customarily receive a 
higher priority in the FHWA's on-site compliance and enforcement 
efforts. In addition, the Motor Carrier Act of 1990 (49 U.S.C. 5113, 
formerly 49 U.S.C. App. 1814) prohibits all motor carriers which 
receive ``Unsatisfactory'' safety ratings from the FHWA from operating 
CMVs to transport placardable quantities of hazardous materials or more 
than 15 passengers, including the driver. This prohibition becomes 
effective 45 days after the motor carrier receives an 
``Unsatisfactory'' safety rating and remains in effect until the 
carrier is issued a ``Conditional'' or ``Satisfactory'' rating.

Gathering Information

    The rating process used by the FHWA is built upon two operational 
tools, the SR and the CR. Although the SR will be eliminated after 
October 1, 1994, it is currently an integral part of the SFRM.
    The SR is an assessment of ``unrated'' motor carriers conducted by 
Federal and State safety specialists. The SR generally requires 4 to 6 
hours to complete, depending upon the size of the motor carrier. The 
safety specialist interviews management officials and inspects samples 
of the records required to be maintained by the FMCSRs and applicable 
HMRs at a motor carrier's principal place of business.
    The SR document, which is completed during the on-site visit, 
contains 70 questions. The SFRM assigns values to each of these 
questions in the SR document depending on the carrier's compliance or 
non-compliance with the subject matter of the question. The questions 
are answered either ``yes'' or ``no'' based upon the safety 
specialist's observations of the motor carrier's operations, records, 
management controls, and the information provided by its 
representatives.
    The CR is a more in-depth examination of a motor carrier's 
operations and is used: (1) To conduct a follow-up investigation on 
motor carriers that were rated ``Unsatisfactory'' or ``Conditional'' as 
a result of a previous SR or CR, or were the subjects of previous 
enforcement actions, (2) to investigate complaints, or (3) to respond 
to a request by a motor carrier to reevaluate its safety rating. 
Documents such as those contained in driver qualification files, 
records of duty status and vehicle maintenance records are thoroughly 
examined for compliance with the FMCSRs and applicable HMRs. Violations 
are recorded on the CR document. Performance-based information, when 
available, is utilized to evaluate the carrier's compliance with the 
FMCSRs' vehicle regulations. Recordable/preventable accident 
information is collected and used by the FHWA in the rating process. It 
consists of the motor carrier's accident history for the 365-day period 
prior to the SR or CR. If the accidents meet the FHWA's recording 
criteria provided in the definition of an accident in Sec. 390.5 of the 
FMCSRs, and are determined by the safety specialist to have been 
preventable (could have been avoided by driver/carrier action), they 
are divided by vehicle miles travelled (VMT) to produce an accident 
rate.

Transforming the Information into a Safety Rating

    Upon completion of the CR, the same 70 questions used in the SR 
document are answered by the safety specialist to initiate the safety 
rating process. The safety specialists receive guidance and training on 
how to complete this form. They identify areas of noncompliance with 
regulations that are considered acute, where noncompliance is so severe 
to require immediate corrective actions, or critical, where 
noncompliance relates to management and/or operational controls. 
Specific regulations are linked to specific questions. If noncompliance 
with an acute regulation, as it relates to a specific question, is 
discovered, the safety specialist marks that question ``No.'' Questions 
that are linked to critical regulations are marked ``No'' only after a 
pattern of noncompliance is discovered. Patterns are used to 
demonstrate more than isolated instances of noncompliance. When large 
numbers of documents are reviewed, the number of violations required to 
establish a pattern is equal to at least 10 percent of those records 
examined.
    The FHWA has developed a computerized algorithm, which is an 
integral part of the SFRM, for assessing the information obtained from 
the SR or CR document and assigning a safety rating. Those requirements 
of the FMCSRs and applicable HMRs that have similar characteristics are 
combined into five regulatory areas called ``rating factors.'' The five 
regulatory factors are: (1) Parts 387 and 390; (2) parts 383 and 391; 
(3) parts 392 and 395; (4) parts 393 and 396; and (5) parts 397 and 
177. A sixth factor is included in the process to address the accident 
history of the motor carrier. Each of the six factors is equally 
weighted, and a rating for each factor is determined by computing the 
results of the responses to the applicable questions. The results for 
each of the six factors are then entered into a rating table which 
establishes the motor carrier's overall safety rating.

Review of the Safety Rating

    Section 385.15 provides motor carriers that believe their safety 
ratings are erroneous because of unresolved factual or procedural 
disputes the opportunity to petition for a review of their ratings. 
Section 385.17 provides motor carriers the right to request another 
review after corrective action has been taken.

Changes to the SFRM in 1993

    In March 1993, two SFRM changes were implemented which affected the 
way motor carrier safety ratings were computed when a CR is performed. 
The first involved evaluation of a motor carrier's compliance with the 
vehicle factor (Parts 393 and 396). Prior to this change, the vehicle 
factor was evaluated on the basis of the recordkeeping requirements in 
Part 396 and on the number of Out-Of-Service (OOS) defects discovered 
when vehicles were inspected during a CR. The change made the vehicle 
factor entirely performance-based when a combination of three or more 
vehicle inspections were either reported in the Motor Carrier 
Management Information System (MCMIS) in the 24 months prior to the CR 
or performed at the time of the review. The vehicle factor was rated 
``Satisfactory'' if the vehicle OOS rate was less than 17 percent, 
``Conditional'' if it fell between 17 and 33 percent, and 
``Unsatisfactory'' if greater than 33 percent. More than 1.6 million 
vehicles are inspected on the roadside each year by State and Federal 
officials. The results of these inspections are maintained in the 
MCMIS. The data base is now sufficiently comprehensive to make it a 
reliable source of information on carrier compliance for a period of 
several years. This information is central to the FHWA's rating of 
motor carriers. It also enables motor carriers to gauge the success of 
their maintenance program and ultimately to reduce OOS rates during 
roadside inspections.
    The second modification related to all the regulatory factors. When 
a pattern of noncompliance with a critical regulation or a single 
instance of noncompliance with an acute regulation resulted in an 
enforcement action (i.e., a notice of claim for a civil penalty, or a 
criminal proceeding), the rating for that factor was 
``Unsatisfactory.'' Noncompliance with acute regulations and patterns 
of noncompliance with critical regulations have been demonstrated 
through data analysis to be linked to inadequate safety management 
controls and higher than average rates of recordable/preventable 
accidents.
    In December 1993 these two changes were refined in the SFRM. The 
December refinements were the result of experience following the 
adoption of the March 1993, SFRM changes, which had placed greater 
emphasis upon performance-oriented motor carrier evaluation than did 
the previous SFRM. It was decided to place more emphasis upon the part 
396 requirements to evaluate the vehicle factor because it had become 
apparent that vehicle roadside inspections were not truly random and 
that inspectors were targeting vehicles and drivers either because of 
previous noncompliance or because the violations were evident to the 
inspectors. Experience also indicated that a factor rating in which 
noncompliance with an acute regulation resulted in an enforcement 
action was more appropriately rated no higher than ``Conditional,'' as 
a violation of an acute regulation by itself was not representative of 
compliance with the entire factor.
    With the first refinement, the vehicle factor is now rated on a 
performance basis if a combination of three or more inspections have 
been recorded in the MCMIS in the twelve months (rather than 24 months) 
prior to the carrier review or performed at the time of the review. 
Moreover, because OOS rates were higher than would otherwise be the 
case because of the non-randomness of the roadside inspections, a new 
two category system was adopted: OOS rates of 34 percent or higher 
create an initial factor rating of ``Conditional,'' while those below 
that figure create an initial factor rating of ``Satisfactory.'' The 
carrier's compliance with the inspection, repair and maintenance 
requirements (Part 396) is examined during each review. The results 
could lower the initial ``Satisfactory'' factor rating to 
``Conditional'', and the initial ``Conditional'' factor rating to 
``Unsatisfactory'' if noncompliance with an acute regulation and/or a 
pattern of noncompliance with a critical regulation is discovered. If 
the examination of the part 396 requirements discloses no such problems 
with the systems the motor carrier is required to maintain for 
compliance, the vehicle factor remains ``Satisfactory'' and 
``Conditional,'' respectively. The second refinement in December 1993 
required that when an enforcement case is initiated based upon 
noncompliance with an acute regulation, the pertinent regulatory factor 
will not be rated higher than ``Conditional.'' If the enforcement case 
is based upon noncompliance with two or more acute regulations within 
the same factor, that factor will be rated ``Unsatisfactory.''
    There was no change in the treatment of a pattern of noncompliance 
with a critical regulation resulting in an enforcement action; the 
pertinent factor rating remains ``Unsatisfactory.''

Additional Information on the Current SFRM

    Anyone interested in obtaining a more comprehensive printed 
explanation of the current Safety Rating process should contact the 
Regional Director, Office of Motor Carriers (See 49 CFR 390.27 for the 
appropriate address), or the Office of Motor Carrier Field Operations, 
Room 3421, Attn: HFO-10, 400 7th Street SW., Washington, DC 20590. A 
copy of that printed explanation has been placed in the docket for 
public review.
    The March and December 1993 changes to the SFRM were not published 
in the Federal Register or codified in the FMCSRs because the SFRM 
simply sets forth the FHWA's rules of procedure and practice for 
implementing Part 385, Safety Fitness Procedures. The SFRM is not a 
separate regulatory standard.

October 1, 1994, Changes to the SFRM

    Analysis of the SFRM confirms the reasonableness of emphasizing 
noncompliance with acute regulations or patterns of noncompliance with 
critical regulations to measure a motor carrier's overall compliance 
with the FMCSRs and applicable HMRs. The modifications direct the 
attention of motor carriers to the regulations shown to have the 
greatest impact upon safety improvement. They simplify the rating 
process, since only noncompliance with acute regulations or patterns of 
noncompliance with critical regulations will be used for evaluating the 
regulatory factors. It should be noted that a ``Satisfactory'' rating 
is only a passing grade and only full compliance with all of the safety 
regulations will assure that motor carriers meet the provisions of part 
385, Safety fitness standard.
    Beginning October 1, 1994, a further modification will be initiated 
to emphasize the importance of compliance with part 395. Studies have 
shown that driver error is a significant factor in the majority of 
accidents. A large component of driver error is fatigue or loss of 
alertness. Part 395 regulations are an extremely important part of a 
motor carrier's safety fitness rating.
    Compliance with the regulatory factors, (1) Parts 387 and 390; (2) 
parts 383 and 391; (3) parts 392 and 395; (4) parts 393 and 396, when 
there are less than 3 vehicle inspections in the last 12 months to 
evaluate; and (5) parts 397 and 177, will thereafter be evaluated as 
follows: For each instance of noncompliance with an acute regulation or 
each pattern of noncompliance with a critical regulation discovered 
during a CR, one point will be assessed. However, each pattern of 
noncompliance with a critical regulation relative to Part 395, Hours of 
Service of Drivers, will be assessed two points. By increasing the 
point value for patterns of noncompliance with critical regulations 
relating to part 395, motor carriers with significant hours of service 
problems will receive no higher than an overall ``Conditional'' safety 
rating. The assignment of the points for the three ratings are a result 
of an October 1993 work-group's analysis of data on noncompliance with 
acute regulations and patterns of noncompliance with critical 
regulations.
    The FHWA regulatory factor ratings will be derived as follows:

Satisfactory--if the critical and/or acutes=0 points
Conditional--if the critical and/or acutes=1 point
Unsatisfactory--if the critical and/or acutes=2 points

    When there are a combination of three or more inspections recorded 
in the MCMIS in the twelve months prior to the carrier review or 
performed at the time of the review, the Vehicle factor (parts 393 and 
396) will be evaluated on the basis of OOS rates and noncompliance with 
acute regulations and/or a pattern of noncompliance with a critical 
regulation.
    The accident factor (recordable/preventable accident rate) will be 
modified to exclude the accident rates for all motor carriers that have 
only one recordable/preventable accident in the twelve months prior to 
the review. This change is being made to reflect the variability of 
accident rates for small motor carriers from one year to the next.
    The formula for assigning a safety rating is not being modified. 
Each of the six factors will continue to be equally weighted, with the 
results of each factor rating being entered into a rating table which 
establishes the motor carrier's overall safety rating.
    The FHWA is soliciting comments concerning the October 1, 1994, 
rating methodology changes; the direction that should be taken when 
future modifications to the SFRM are made; and suggestions on how to 
get information to the industry on new regulations or changes, and FHWA 
programs to encourage ``voluntary compliance.''

(49 U.S.C. 31144 (1994); 49 CFR 1.48)

    Issued on: September 7, 1994.
Rodney E. Slater,
Federal Highway Administrator.
[FR Doc. 94-22662 Filed 9-13-94; 8:45 am]
BILLING CODE 4910-22-P