[Federal Register Volume 62, Number 102 (Wednesday, May 28, 1997)]
[Proposed Rules]
[Pages 28826-28835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13873]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 385

[FHWA Docket No. MC-94-22; FHWA-97-2252]
RIN 2125-AC 71


Safety Fitness Procedure; Safety Ratings

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: This document is in response to a decision of the U.S. Court 
of Appeals, District of Columbia Circuit, entered on March 18, 1997. In 
this rulemaking the FHWA is proposing to incorporate a modified Safety 
Fitness Rating Methodology (SFRM), which would be used to measure the 
safety fitness of motor carriers against the safety standard, as an 
appendix to its Safety Fitness Procedures regulations. An interim final 
rule published elsewhere in today's Federal Register incorporates the 
current SFRM for an interim period to rate motor carriers that are 
transporting hazardous materials in quantities for which vehicle 
placarding is required, or transporting 15 or more passengers including 
the driver.

DATES: Comments must be received on or before July 28, 1997.

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, D.C. 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.

FOR FURTHER INFORMATION CONTACT: Mr. William C. Hill, Vehicle and 
Operations Division, 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:

Background

    The U.S. Court of Appeals for the District of Columbia Circuit 
ruled that the FHWA's procedures for assigning safety ratings were 
adopted contrary to law. MST Express and Truckers United for Safety v. 
Department of Transportation and Federal Highway Administration, No. 
96-1084, March 18,1997. The court ruled that the FHWA had failed to 
carry out its statutory obligation to establish, by regulation, a means 
of determining whether a motor carrier has complied with the safety 
fitness requirements of the Motor Carrier Safety Act of 1984 (MCSA) 
(codified at 49 U.S.C 31144). Because the carrier's safety rating was 
determined based upon rules that were not promulgated pursuant to 
notice and comment rulemaking, as 49 U.S.C. 31144(a) requires, the 
petitioner's conditional safety rating was vacated and the matter 
remanded to the FHWA ``for such further action as it may wish to take, 
consistent with the decision.''
    In this notice of proposed rulemaking (NPRM), the FHWA proposes to 
modify the SFRM, incorporate it as Appendix B to Part 385, and use it 
as the means for deciding whether motor carriers meet the safety 
fitness requirements.
    The FHWA has been using an SFRM, comprised of six rating factors, 
since October 1, 1989, as the mechanism for determining how well motor 
carriers are adhering to 49 CFR 385.5, Safety fitness standard. In 
addition to making the detailed explanation available since August 16, 
1991, the FHWA has sought comments from interested members of the 
public in FHWA Docket Nos. MC-91-8 (56 FR 40801) and MC-94-22 (59 FR 
47203).
    In the first docket, the FHWA solicited public comment on an 
interim final rule (56 FR 40801) (August 16, 1991) implementing that 
provision of the MCSA of 1990, Pub. L. 101-500, Sec. 15(b)(1), 104 
Stat. 1218, 49 U.S.C. 5113, prohibiting a motor carrier with an 
unsatisfactory safety rating from operating a commercial motor vehicle 
(CMVs) to transport: (1) hazardous materials in quantities for which 
vehicle placarding is required, or (2) more than 15 passengers 
including the driver. This prohibition becomes effective after 45 days 
have elapsed following receipt of an unsatisfactory safety rating 
issued by the FHWA. During the 45-day period, the motor carrier should 
take such action as may be necessary to improve its safety rating to 
conditional or satisfactory or be subject to the prohibition. Fourteen 
comments were received in response to the 1991 interim final rule. Such 
of those comments as provide relevant information to this NPRM are 
discussed herein. The FHWA will also determine whether the 1991 interim 
rule is to be made final after consideration of the comments received 
in response to today's NPRM.
    In the second docket, the FHWA published in the Federal Register on 
September 14, 1994, a notice and request for comments (59 FR 47203) 
explaining changes made to the SFRM in 1993, which was then being used 
to evaluate a motor carrier's adherence to the Sec. 385.5 safety 
fitness standard. Additional changes to the SFRM, which became 
effective on October 1, 1994, were also explained. These changes 
initiated the use of violations of the safety regulations designated as 
``acute'' or ``critical'' to rate each of the five regulatory factors 
evaluated when performing a compliance review (CR) at a carrier's place 
of business.
    The FHWA also solicited comments concerning: (1) changes made in 
1994, (2) the direction that future modifications to the SFRM should 
take, and (3) how best to disseminate information to the industry about 
new regulations and the FHWA programs that encourage ``voluntary 
compliance.''
    The 17 comments received in response to changes to the rating 
criteria are discussed in this notice to the extent they provide 
relevant information to this NPRM. Comments that are duplicative of 
those discussed under the prior docket discussion are not repeated.
    In today's NPRM, the FHWA is proposing to incorporate as Appendix B 
to Part 385 the SFRM in a form substantially similar to that which has 
been used over the past 8 years and adopted by the interim final rule 
published elsewhere in today's Federal Register. The SFRM proposed in 
this NPRM has been modified, however, to change the accident factor. 
The reasons for this proposed modification are as follows. The 
preventable recordable accident criteria have been used by

[[Page 28827]]

FHWA since the mid-1980s. The FHWA has, however, received complaints 
that the criteria are too subjective. During the CR, preventability is 
evaluated based on the safety specialist's assessment. The FHWA 
believes that if a driver, who exercises normal judgment and foresight 
could have foreseen the possibility of the accident that in fact 
occurred, and avoided it by taking steps within his/her control which 
would not have risked causing another kind of mishap, the accident was 
preventable. However, individuals will not always agree when the same 
fact situations are evaluated.
    We are proposing to use all recordable accidents in evaluating the 
accident factor because we believe this is a more objective standard. 
The data indicate that the vast majority of all accidents have been 
determined to be preventable. For Fiscal Year 1995, the average 
accident rate, derived from CRs performed during that time frame, was 
0.812 for all carriers and 1.029 for carriers that operated entirely 
within a 100 air mile radius.
    We are proposing to double the average rate to determine when a 
carrier is unsatisfactory in the accident factor. The FHWA believes 
that it would be reasonable to rate unsatisfactory, for the accident 
factor alone, any motor carrier with an accident rate that is twice the 
average rate for all carriers (or for carriers operating entirely 
within the 100 air mile radius, as the case may be), because the FHWA 
believes that it is likely that a carrier with an accident rate 
substantially above the norm for similarly situated carriers has 
inadequate or improperly functioning safety management controls. See 49 
CFR Sec. 385.7. Nevertheless, the recordable accident rate will be used 
to rate Factor 6, Accident, for a carrier only when the carrier has had 
two or more recordable accidents within the 12 months prior to the CR. 
The FHWA believes that a single accident within that time frame could 
be due to any number of reasons not reflecting on the adequacy of the 
carrier's safety management controls. Additionally, the FHWA proposes 
no longer to assign satisfactory or conditional ratings for this 
factor; only unsatisfactory ratings will be assigned.

Discussion of Comments

Purpose of Safety Ratings

    The Interstate Truckload Carriers Conference (ITCC) stated that the 
FHWA's safety rating process was never intended to be used as an 
administrative mechanism for imposing severe sanctions upon motor 
carriers. The safety rating system, according to the ITCC, was 
developed as an educational and management tool so the FHWA could focus 
its limited resources on the operations of motor carriers with 
problems. The commenter claimed that a motor carrier could receive a 
rating as a result of factors or considerations which were never part 
of a rulemaking proceeding and thus possibly be a violation of the 
Administrative Procedure Act (APA).
    The American Trucking Associations (ATA) had similar concerns that 
because the safety criteria had not gone through public notice and 
comment rulemaking, it would be a possible violation of the APA and 
unfair for the FHWA to use those criteria for enforcement purposes. The 
ATA wanted the FHWA to provide the formula that establishes the 
unsatisfactory safety rating. It also stated that the safety rating 
process should be developed through notice and comment rulemaking. 
Comments concerning the safety review (SR) are no longer relevant since 
that review process was discontinued on September 30, 1994.
    The FHWA adopted a final rule in 1988, after notice and opportunity 
for comment, that implemented the requirements of section 215 of the 
MCSA of 1984 and established a procedure to determine the safety 
fitness of motor carriers. The FHWA believed that the SFRM that it used 
to supplement the procedures set forth in its regulations did not 
amount to substantive requirements necessitating notice and comment 
rulemaking. In its interim final rule adopted in 1991, the FHWA advised 
motor carriers that they could obtain copies of the safety rating 
process by contacting the agency. See 56 FR at 40803. This offer to 
provide copies of the SFRM to carriers was reiterated in 1994. See 59 
FR at 47205.
    In light of the court's decision in MST Express, the FHWA is now 
soliciting public comment on its proposal to add the SFRM, modified as 
described in this NPRM, to Part 385. The FHWA notes that the SFRM 
proposed today has been modified, in part, in light of public comments 
received in response to the 1991 interim final rule and the 1994 
request for public comment.

Accident Factor

    The ATA and the American Bus Association (ABA) were concerned about 
the inclusion of the reportable/preventable (subsequently changed to 
recordable/preventable) accident frequency in the rating process, as 
there are no regulations specifying acceptable frequencies for a 
satisfactory rating. Also, they believe that in borderline cases 
preventability is a judgment call that may be influenced by short-term 
objectives. The ABA stated that the FHWA has not defined a preventable 
accident, and it would like the criteria for preventability ``spelled 
out.'' The ABA also suggested that the FHWA could consider all 
reportable (now recordable) accidents in its safety rating process, 
which would eliminate subjective evaluations of whether particular 
accidents were preventable.
    In response to these comments, the FHWA is proposing to adopt a 
recordable accident rate for the accident factor in the SFRM as 
discussed above.
    The recordable accident rate will be used to rate Factor 6, 
Accident, only when two or more recordable accidents occurred within 
the 12 months prior to the initiation of the CR. Urban carriers (a 
carrier operating entirely within the 100 air mile radius) with a 
recordable accident rate greater than 2.1 will receive an 
unsatisfactory rating for the accident factor. All other carriers with 
a recordable accident rate greater than 1.6 would receive an 
unsatisfactory factor rating.

Definitions of ``Conditional'' and ``Unsatisfactory''

    The ATA noted that the Sec. 385.3 definitions of conditional and 
unsatisfactory should be changed to reflect Sec. 385.5 (a)-(k), and not 
(h), as published in the August 16, 1991, Federal Register. That change 
is proposed in this notice.

Objectivity of Ratings

    The Chemical Waste Transportation Institute (CWTI) supported the 
FHWA's efforts to develop a computerized rating formula, and wanted the 
subjectivity minimized as much as possible. It also suggested that the 
FHWA describe what steps are being taken to minimize human error in the 
safety rating process.
    The FHWA believes that having modified the SFRM to rate on the 
basis of actual violations of acute regulations and patterns of 
violations of critical regulations, as well as performance proposed to 
be measured by recordable accidents and vehicle out-of-service (OOS) 
rates from roadside vehicle/driver inspections, the safety rating 
process has been made more objective.

Definitions of ``Acute'' and ``Critical'' Regulations

    General Electric recommended having the ``critical'' and ``acute'' 
regulations made available to the public and the definitions of the 
terms ``critical'' and ``acute'' defined in part 385. It also 
recommended that the definitions of conditional and unsatisfactory be 
revised to make a clearer distinction

[[Page 28828]]

between these two ratings. The ABA stated that ``the definitions of 
critical and acute violations are too vague to allow a reasonable 
objective judgment.'' The ``acute'' and ``critical'' regulations and 
the definitions of the terms are being published in the proposed 
Appendix B to 49 CFR 385.

Algorithm

    Blakely & Associates wanted a computerized algorithm with a formula 
table so that carriers can determine ratings themselves. It also 
suggested that the FHWA provide to the carrier the rating at the 
conclusion of the CR. The SFRM contains explanations of the factor 
ratings and the Motor Carrier Safety Rating Table, which is the formula 
for determining a safety rating. The FHWA has also modified its 
procedures to provide motor carriers with an anticipated rating at the 
conclusion of the CR.

Elimination of the SR

    Hanson Trucking and the ITCC believe that the SR should not have 
been eliminated as ``it takes the focus of the audit from realistic 
safety concerns and places the focus on inaccuracies in paperwork.'' 
Hanson Trucking did not believe that noncompliance in the areas of 
false entries and improper form and manner will lead to increased 
accident frequency and severity. The ITCC believed that the 70-question 
format allowed carriers to police their operations and determine the 
quality of their safety compliance in advance of a CR by the FHWA. It 
stated that the first concern of an on-site audit should be the 
accident history of the motor carrier. Further, the ITCC believes that 
if a high accident frequency is in evidence, a CR should then be 
conducted in an attempt to educate the carrier in accident 
preventability. According to the ITCC, the lack of significant accident 
data (no accidents) should indicate that the motor carrier has an 
adequate safety program in place. The end goal, the ITCC stated, should 
be: no accident problems equals no CR or enforcement action.
    The FHWA discontinued the SR since the CR is a more objective means 
to assess a motor carrier's adherence to the Sec. 385.5, safety fitness 
standard. To the extent a carrier needs to know how far into 
noncompliance it can slip without risking a bad rating, the carrier 
will now be able to assess its safety compliance by conducting a self-
review to determine if it has violations of ``acute'' regulations or 
patterns of violations of ``critical'' regulations.

Vehicle Factor

    In factor 4 (Vehicle), the California Highway Patrol (CHP) believes 
the former system of a conditional threshold at 17 percent vehicle OOS 
rate for the vehicle factor was more appropriate than the current 34 
percent OOS rate for conditional, and the Advocates for Highway and 
Auto Safety (Advocates) generally agreed with this position. The CWTI 
requested the FHWA to disclose its rationale for 34 percent OOS rate 
for a conditional factor 4 rating and for selecting 10 percent for the 
pattern of violations when evaluating compliance with ``critical'' 
regulations. The NPTC stated that the original 17 percent OOS rate 
should be the threshold for assigning a conditional factor rating, and 
then random vehicle inspections should be performed at the time of the 
CR. If there is total compliance with the part 396 requirements, the 
factor rating should be upgraded.
    The ATA and several carriers were concerned that vehicles are 
sometimes inspected, no defects are discovered and the vehicles are 
then allowed to proceed without written inspection reports. Because of 
this, they contend the FHWA should re-evaluate the use of OOS 
percentages as a major component of factor 4 (Vehicle) rating, and 
place more importance on the motor carrier's compliance with part 396. 
Some carriers contended that for the OOS rate to be an accurate 
representation of a motor carrier's compliance with the regulations, it 
must be adjusted to the carrier's size.
    The FHWA considered the comments concerning the method of 
evaluating compliance with the Vehicle Factor. The FHWA believes that 
the current method is appropriate and will not propose any changes at 
this time. Our goal is to utilize ``performance-based information'' to 
rate motor carriers whenever possible. Vehicle OOS rates are, 
therefore, used as a first indicator to evaluate factor 4-(Vehicle). A 
minimum of three or more inspections would be required to use vehicle 
OOS rates as a first indicator. The three inspections must have 
occurred in the twelve months prior to the CR, or be a combination of 
inspections performed at the motor carrier's facility at the time of 
the CR.
    If it appears during the CR that the motor carrier's maintenance 
has either improved or deteriorated since the inspections in the Motor 
Carrier Management Information System, it is appropriate for the 
individual conducting the CR to perform inspections at the motor 
carrier's facility if vehicles are available (vehicles ready to be 
dispatched or vehicles that just came off the road). Inspections may 
also be performed at the motor carrier's facility at the time of the 
CR, if there are fewer than three inspections on the carrier profile 
for the prior 12 months.
    The reason for using a 34 percent or greater OOS rate for the 
conditional first indicator is as follows: (1) The national OOS rate 
has been in the low thirties for several years; (2) many of the 
roadside inspections are targeted at visibly defective vehicles; (3) 
some vehicles receive a cursory inspection and if there are no apparent 
defects, the vehicles are allowed to proceed without an inspection 
report being generated; and (4) using a minimum of three or more 
vehicle inspections, one OOS vehicle should not be able to impact the 
factor rating. The second indicator is the motor carrier's compliance 
with part 396, inspection, repair, and maintenance requirements. The 
number of records to be reviewed is derived from the International 
Standard of sampling procedures. If a violation of a part 396 acute 
regulation, or a pattern of violations of a critical regulation is 
discovered, a first indicator factor rating of conditional will be 
lowered to unsatisfactory, and a satisfactory factor rating to 
conditional, respectively.
    Using two indicators to evaluate this factor is a reasonable 
approach. The vehicle OOS rates are either confirmed, with the first 
indicator rating remaining the same, or if significant noncompliance 
with part 396 is discovered, the factor rating is lowered to 
conditional or unsatisfactory, respectively. All of the defects that 
have been identified as OOS violations have the same weight, which is 
an additional reason for the OOS rate being set at 34 percent for 
conditional as the first indicator in the factor rating.

Selection of Records for Review

    The ATA and several carriers stated that the safety rating process 
is not based upon a random sampling of the motor carrier's records. The 
FHWA has given a great deal of consideration to the issue of selecting 
carriers' records for review. The Sec. 385.5 safety fitness standard 
was developed to measure the effectiveness of a motor carriers' safety 
management controls. The CR identifies and documents areas where a 
motor carrier's safety management controls have failed or are 
ineffective. The FHWA focuses its review on drivers and vehicles that 
were involved in accidents, those drivers who incurred OOS violations 
during roadside inspections, or those drivers or vehicles for which 
violations are more likely to be found (e.g. those drivers driving the

[[Page 28829]]

most miles). The drivers and vehicles reviewed using the ``focused 
sample'' are the same ones carrier officials should be focusing their 
efforts upon. The minimum number of records to be reviewed is derived 
from the International Standard of sampling procedures, which is based 
upon the number of drivers or vehicles that the motor carrier operates. 
When the number of records from this focused sample has been exhausted 
and there are fewer records than the sampling guidelines specify, 
random sampling is used to meet the minimum number required to be 
reviewed. Classifying certain regulations as ``acute'' or ``critical'' 
assists motor carriers in their compliance efforts as they can 
concentrate their initial efforts on complying with these regulations. 
It should be noted, however, that only full compliance with all of the 
safety regulations will ensure that motor carriers comply with the 
provisions of the Sec. 385.5, safety fitness standard.
    ``Acute'' regulations are ones where violations should not occur 
for a motor carrier with effective safety management controls. An 
example of an ``acute'' regulation is Sec. 382.211, using a driver who 
has refused to submit to an alcohol or controlled substances test 
required under part 382. A motor carrier which commits this violation 
is one that instructed the driver to undergo testing, and the driver 
refused to be tested. There is no reasonable excuse for a carrier to 
use the driver after that driver's refusal to be tested.
    A pattern of noncompliance is required before a rating factor is 
impacted by violations of ``critical'' regulations because even a motor 
carrier with effective safety management controls will, in all 
likelihood, violate some of the ``critical'' regulations. An example of 
a ``critical'' regulation is Sec. 395.3(a)(1), requiring or permitting 
driver to drive more than 10 hours. By identifying this regulation as 
``critical,'' the FHWA has ensured that violations will not impact 
factor 3 (Hours of Service) unless they constitute a pattern. A pattern 
is defined as a number of violations (more than one) constituting 10 
percent or more of the occasions where like violations could have 
occurred. Thus, when evaluating compliance with a ``critical'' 
regulation, the motor carrier's safety management controls usually are 
judged to be effective if the number of discovered violations is under 
10 percent.
    The FHWA believes that motor carriers with effective safety 
management controls are able to achieve a level of compliance with 
``critical'' regulations before they reach a pattern of violations. For 
rating purposes, all violations are considered, and effective safety 
management oversight should result in a violation rate of less than 10 
percent of the records or occasions reviewed.

Opportunity to Challenge a Rating

    Several commenters wanted the procedures changed to allow a motor 
carrier 30 days to challenge an anticipated safety rating where there 
are factual issues in dispute.
    The FHWA believes that providing a motor carrier the anticipated 
rating at the conclusion of the CR gives the carrier adequate notice 
that a rating of conditional or unsatisfactory will become effective 30 
days from that date. Motor carriers receiving such a notice can 
immediately: (1) Take corrective action on the discovered violations, 
which will enable them to request a reevaluation based upon corrective 
action taken (Sec. 385.17), and/or (2) petition the Director, Office of 
Motor Carrier Field Operations, if there are factual or procedural 
issues in dispute (Sec. 385.15). Either option may be utilized before 
the carrier receives a final safety rating.

Point Assessment for Violations of ``Acute'' and ``Critical'' 
Regulations

    The ATA stated that assessing one point for a violation of an 
`acute' regulation discriminates against the large motor carrier since 
more records are reviewed. Thus, it contends, there is a greater chance 
of one violation being discovered. The ATA further stated that 
violations of ``acute'' regulations should be evaluated on a percentage 
basis analogous to the 10% threshold for ``critical'' regulations. 
Rocor International wanted the percentage of violations of an ``acute'' 
regulation to be set at five percent of the records examined before one 
point is assessed. It stated that this would be fairer to the larger 
motor carrier where the probability of discovering a violation of one 
``acute'' regulation increases directly with the number of records 
examined. The NPTC commented ``Automatically assigning a conditional 
rating for a single instance of noncompliance with an ``acute'' 
regulation may not be justified and fair. Just as there are many 
factors that determine the safety fitness of a motor carrier--vehicle 
condition, driver condition, over-the-road performance--when one part 
of one of these factors is out of compliance, it does not necessarily 
mean the motor carrier is unsafe.''
    Acute regulations have been identified as regulations where 
noncompliance is so severe (and avoidable by the attentive motor 
carrier) that its occurrence is itself demonstrable of the absence of 
effective safety management controls. It is reasonable to demand zero 
tolerance for violations of these regulations. Thus, regardless of the 
number of motor carrier records checked, there should not be any 
instances of noncompliance with these identified ``acute'' regulations. 
If a motor carrier has violated an acute regulation, one instance of 
noncompliance will cause the factor rating to be conditional, but will 
not, in and of itself, cause the motor carrier to have a less than 
satisfactory safety rating. A motor carrier with as many as two factor 
ratings of conditional will still be rated as satisfactory. The FHWA 
believes that this is adequate protection for a motor carrier, of any 
size, that violates an acute regulation.
    The CHP and the Advocates agreed with two points being assessed for 
a pattern of non-compliance with part 395 critical regulations.
    On the other hand, the ATA and several other commenters believed 
that there is no justification for doubling the point value for hours 
of service violations, and that the FHWA has no evidence to show that 
fatigue or lack of alertness related accidents are tied to hours of 
service violations. Schafer Trucking wanted factor 3 (Hours of Service) 
changed from two points to one point for a pattern of noncompliance 
with a critical regulation unless the CR reveals the absence of an 
effective hours of service compliance program as indicated by either: 
(i) A recordable/preventable accident rate of more than 0.45 per 
million miles, or (ii) the failure of the carrier to have in place an 
hours of service compliance program enforced by sanctions which include 
driver suspensions and/or terminations for hours of service 
violations.''
    The FHWA believes that there are data to draw the conclusion that 
hours of service violations are related to fatigue. Studies have shown 
that driver error is a significant factor in the majority of accidents. 
The FHWA is continuing its major research efforts to better understand 
fatigue. There are no ``acute'' regulations in part 395 (Hours of 
Service). Thus, to have a rating of less than satisfactory in factor 3, 
a motor carrier would need a pattern of noncompliance with a 
``critical'' regulation. When reviewing driver records of duty status 
(RODS), it is very rare that only several records are reviewed as a 
driver would typically generate 30 RODS in a month. The FHWA believes 
that motor carriers with effective safety management controls

[[Page 28830]]

will have less than a 10 percent rate of noncompliance with any of the 
part 395 critical regulations.

Rating Factors

    The ITCC stated that the assignment of equal weights for the six 
rating factors seems inconsistent with the underlying purpose of giving 
more weight to violations of regulations that are acute or critical. It 
did not think that all factors should be weighted equally. The ITCC 
also stated that the overall factor rating is the correct area in which 
to place greater emphasis upon compliance with violations of the hours 
of service regulations.
    The FHWA's SFRM, developed in 1988-89, combines parts of the FMCSRs 
and HMRs having similar characteristics into five regulatory areas 
called ``rating factors.'' A sixth factor is included to address the 
accident history of the motor carrier. Each of the factors is rated 
satisfactory, conditional or unsatisfactory. Each of the six factors is 
weighted equally in the safety rating methodology. Giving each of the 
six factors equal weight is an attempt to balance the safety 
significance of the regulations, except that the FHWA believes it is 
appropriate to increase the point value for patterns of noncompliance 
with ``critical'' regulations relating to Part 395. Otherwise, the FHWA 
intends to retain the equal weight of the six factor ratings.
    Regarding some comments suggesting more or less relationship 
between enforcement and rating factors, the FHWA believes that 
separating enforcement actions from safety ratings is appropriate. Both 
are tools that are used to induce motor carriers to improve their 
compliance with regulatory requirements. There will be instances where 
a motor carrier has an enforcement action pending against it, and 
appropriately has a satisfactory safety rating. An example of this is 
where one terminal has a 15 percent violation rate for compliance with 
Sec. 395.3 (a)(1), requiring or permitting driver to drive more than 10 
hours. The motor carrier's overall violation rate may be seven percent 
for compliance with Sec. 395.3(a)(1), which is satisfactory; however, 
an enforcement action may be initiated against the carrier for its 
terminal with the 15 percent violation rate. The FHWA believes this is 
appropriate as the carrier's overall compliance is satisfactory yet it 
has a significant noncompliance problem at one terminal with a 15 
percent violation rate for noncompliance with Sec. 395.3(a)(1).

Future Direction

    Today's NPRM is necessary to meet the FHWA's obligation under 49 
U.S.C. Sec. 31144, as interpreted by the court in MST v. DOT, to 
prescribe regulations establishing a procedure to decide on the safety 
fitness of owners and operators of commercial motor vehicles, which 
shall include--
    (A) specific initial and continuing requirements to be met by the 
owners, operators, and persons to prove safety fitness;
    (B) a means of deciding whether the owners, operators, and persons 
meet the safety fitness requirements of clause (A) of this paragraph; 
and
    (C) specific time deadlines for action by the Secretary in making 
fitness determinations.
    The FHWA believes incorporation of the SFRM and the other 
amendments to Part 385 proposed herein will meet that obligation. It is 
now soliciting further comments on the SFRM as an appendix to Part 385 
for use in determining a motor carrier's safety fitness, the proposed 
change to the accident factor, as well as on the other minor changes 
proposed to be made to Part 385 itself.
    The FHWA views this proposed action as a short-term approach. For 
the long term, the FHWA is moving toward a more performance-based means 
of determining when it is that carriers are not fit to conduct 
commercial motor vehicle operations safely in interstate commerce.
    Under legislative direction in the Intermodal Surface 
Transportation and Efficiency Act of 1991, the FHWA has been conducting 
pilots in five States to determine the feasibility of relating safety 
performance to vehicle registrations. This has led to the development 
of a system of data collection, called Safestat, which incorporates all 
the safety information known about motor carriers and produces a 
relative ranking of each carrier against all others similarly situated. 
Within the next year or two, the FHWA believes the system will have 
reached the point where it can be successfully employed to identify the 
worst performing carriers. The system is presently used to identify 
problem carriers and prioritize them for CRs.
    Several sections in part 385 are proposed to be amended to correct 
previous technical errors. The definition of ``Safety review'' in 
section 385.3 would be removed since the Safety Review was discontinued 
as of October 1, 1994. The definition of Conditional safety rating in 
section 385.3 would be revised to ``ensure compliance with the safety 
fitness standard that could result in occurrences listed in 
Sec. 385.5(a) through (k).'' The definition of Unsatisfactory safety 
rating would be revised to ``ensure compliance with the safety fitness 
standard which has resulted in occurrences listed in Sec. 385.5(a) 
through (k). Section 385.9 would be revised to include a subsection (b) 
to meet the 49 U.S.C Sec. 31144(a)(C) requirement that there be 
specific time deadlines for action by the Secretary in making fitness 
decisions. Section 385.17 would be revised to ``conditionally suspend 
the prohibition of operating with the unsatisfactory safety rating for 
an additional period of up to 10 days.'' The current Appendix to Part 
385 is changed to Appendix A in the interim final rule published 
elsewhere in today's Federal Register. The revised Safety Rating 
Process is added as Appendix B.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866. No 
serious inconsistency or interference with another agency's actions or 
plans is likely to result, and it is unlikely that this regulatory 
action will have an annual effect on the economy of $100 million or 
more. This Notice of proposed rulemaking rule is administrative in 
nature in that it neither imposes new requirements upon the motor 
carrier industry nor alters the August 16, 1991, interim final rule 
implementing the provisions of 49 U.S.C. 5113. The FHWA does not 
anticipate any new economic impacts as a result of this rulemaking. 
This rule would not impose any costs on motor carriers in addition to 
those assessed in the Regulatory Evaluation and Regulatory Flexibility 
Analysis prepared in support of the 1988 final rule. (The 1991 interim 
final amended the 1988 rule in ways that the FHWA believes had minimal 
economic impact on motor carriers.)
    The existing rating factors are used to evaluate the degree to 
which the motor carrier complies with the regulations and add no costs 
because the carrier is already required to comply. Compliance with 
regulations, however, is only a surrogate for actual safety 
performance. The addition of the accident factor introduced a direct 
measure of performance into the equation. In 1988, this factor was not 
considered as having a cost consequence because the effect of a 
negative rating resulting from substantially higher accidents than the

[[Page 28831]]

norm would be virtually identical to the impact on the carrier's 
business that would flow from public knowledge of its poor safety 
performance.
    The impact resulting from a negative rating generally relates to 
knowledge of the rating by a shipper or insurer. If those same entities 
know of the unusually high accident rate, the FHWA believes the 
consequences would or should be approximately the same.
    The instant proposal to consider all recordable accident instead of 
only preventable recordable accidents would have the same sort of 
impact. Nevertheless, the FHWA believes that this is a significant 
regulatory action within the meaning of the Department of 
Transportation's regulatory policies and procedures because it expects 
that there will be significant public interest in this action.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small entities 
and has determined that it would not have a significant economic impact 
on a substantial number of small entities. The motor carriers 
economically impacted by this rulemaking will be those who are rated as 
unsatisfactory, and fail to take appropriate actions to have their 
rating upgraded. In the past, relatively few small motor carriers had 
been affected by the statutory consequences of an unsatisfactory, and 
there is no reason to believe that those impacts will increase in any 
way by this action.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that this rulemaking does not have sufficient Federalism implications 
to warrant the preparation of a Federalism assessment. These safety 
requirements do not directly preempt any State law or regulation, and 
no additional costs or burdens would be imposed on the States as a 
result of this action. Furthermore, the State's ability to discharge 
traditional State governmental functions would not be affected by this 
rulemaking.

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

    This action does not contain a collection of information 
requirement for the purposes of the Paperwork Reduction Act of 1995, 44 
U.S.C. 3501-3520.

National Environmental Policy Act

    The agency has analyzed this rulemaking for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has 
determined that this action would not have any effect on 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: May 21, 1997.
Jane F. Garvey,
Acting Federal Highway Administrator.

    In consideration of the foregoing, the FHWA proposes to amend title 
49, Code of Federal Regulations, Chapter III, Part 385 as set forth 
below:

PART 385--SAFETY FITNESS PROCEDURES

    1. The authority citation for part 385 continues to read as 
follows:

    Authority: 49 U.S.C. 104, 504, 521(b)(5)(A), 5113, 31136, 31144, 
and 31502; 49 CFR 1.48.

    2. In Sec. 385.3, under the definition ``Reviews'', remove and 
reserve paragraph ``(2) Safety review''; and under the definition 
``Safety ratings'', revise paragraphs ``(2) Conditional safety rating'' 
and ``(3) Unsatisfactory safety rating'' to read as follows:


Sec. 385.3  Definitions.

* * * * *
    Reviews. * * *
    (1) * * *
    (2) [Reserved]
    (3) * * *
    Safety ratings: (1) * * *
    (2) Conditional safety rating means a motor carrier does not have 
adequate safety management controls in place to ensure compliance with 
the safety fitness standard that could result in occurrences listed in 
Secs. 385.5 (a) through (k).
    (3) Unsatisfactory safety rating means a motor carrier does not 
have adequate safety management controls in place to ensure compliance 
with the safety fitness standard which has resulted in occurrences 
listed in Secs. 385.5 (a) through (k).
* * * * *
    3. Section 385.9 is amended by designating the current undesignated 
text as paragraph (a), and by adding paragraph (b) to read as follows:


Sec. 385.9  Determination of a safety rating.

    (a) * * *
    (b) Unless otherwise specifically provided in this chapter, a 
safety rating will be issued to a motor carrier within 30 days 
following the completion of a compliance review.
    4. Section 385.17 is amended by revising paragraph (c) to read as 
follows:


Sec. 385.17  Request for a change in a safety rating; corrective action 
taken.

* * * * *
    (c) In cases where the FHWA is unable to make a determination 
within the 45-day period established in Sec. 385.13 and the motor 
carrier has submitted evidence that corrective actions have been taken 
pursuant to paragraph (a) of this section, and has cooperated in any 
investigation, the FHWA may conditionally suspend the prohibition of 
operating with the unsatisfactory safety rating for an additional 
period of up to 10 days.
    5. Part 385 is amended by designating the existing appendix as 
appendix A, and by adding appendix B to read as follows:

Appendix B To Part 385--Safety Rating Process

    Section 215 of the Motor Carrier Safety Act of 1984 (49 U.S.C. 
31144) directed the Secretary of Transportation, in cooperation with 
the Interstate Commerce Commission, to establish a procedure to 
determine the safety fitness of owners and operators of commercial 
motor vehicles operating in interstate or foreign commerce. The 
Secretary, in turn, delegated this responsibility to the Federal 
Highway Administration (FHWA).
    As directed, FHWA promulgated a safety fitness regulation, 
entitled ``Safety Fitness Procedures'', which established a 
procedure to determine the safety fitness of motor carriers through 
the assignment of safety ratings and established a ``safety fitness 
standard'' which a motor carrier must meet to obtain a satisfactory 
safety rating.
    To meet the safety fitness standard, a motor carrier must 
demonstrate to FHWA that it has adequate safety management controls 
in

[[Page 28832]]

place which function effectively to ensure acceptable compliance 
with the applicable safety requirements. A ``safety fitness rating 
methodology'' (SFRM) was developed by the FHWA, which uses data from 
compliance reviews (CRs) to rate motor carriers.
    The safety rating process developed by FHWA's Office of Motor 
Carriers is used to:
    1. Evaluate safety fitness and assign one of three safety 
ratings (satisfactory, conditional or unsatisfactory) to motor 
carriers operating in interstate commerce. This process conforms 
with 49 CFR 385.5--Safety fitness standard and Sec. 385.7--Factors 
to be considered in determining a safety rating.
    2. Identify motor carriers needing improvement in their 
compliance with the Federal Motor Carrier Safety Regulations 
(FMCSRs) and applicable Hazardous Material Regulations (HMRs). These 
are carriers rated unsatisfactory or conditional.

Source of Data for Rating Methodology

    The FHWA's rating process is built upon the operational tool 
known as the CR. This tool was developed to assist Federal and State 
safety specialists in gathering pertinent motor carrier compliance 
and accident information.
    The CR is an in-depth examination of a motor carrier's 
operations and is used (1) to rate unrated motor carriers, (2) to 
conduct a follow-up investigation on motor carriers rated 
unsatisfactory or conditional as a result of a previous review, (3) 
to investigate complaints, or (4) in response 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 HMRs. Violations are cited on the CR 
document. Performance based information, when available, is utilized 
to evaluate the carrier's compliance with the vehicle regulations. 
Recordable accident information is also collected.

Converting CR Information Into a Safety Rating

    The FHWA gathers information through an in-depth examination of 
the motor carrier's compliance with identified ``acute'' or 
``critical'' regulations of the FMCSRs and HMRs.
    Acute are those identified regulations, where noncompliance is 
so severe to require immediate corrective actions by a motor carrier 
regardless of the overall safety posture of the motor carrier. An 
example of an acute regulation is Sec. 383.37(b)--Allowing, 
requiring, permitting, or authorizing an employee with more than one 
Commercial Driver's License (CDL) to operate a commercial motor 
vehicle. Noncompliance with Sec. 383.37(b) is usually discovered 
when the motor carrier's driver qualification file reflects that the 
motor carrier had knowledge of a driver with more than one CDL, and 
still permitted the driver to operate a commercial motor vehicle. If 
the motor carrier did not have knowledge or could not reasonably be 
expected to have knowledge, then a violation would not be cited.
    Critical are those identified regulations, where noncompliance 
relates to management and/or operational controls. Noncompliance 
with these regulations is indicative of a breakdown in a carrier's 
management controls. An example of a critical regulation is 
Sec. 395.3(a)(1)--Requiring or permitting a driver to drive more 
than 10 hours.
    The list of the acute and critical regulations which are used in 
determining safety ratings is included at the end of this document.
    Noncompliance with acute regulations and patterns of 
noncompliance with critical regulations are quantitatively linked to 
inadequate safety management controls and usually higher than 
average accident rates. The FHWA has used noncompliance with acute 
regulations and patterns of noncompliance with critical regulations 
since 1989 to determine motor carriers' adherence to the 
Sec. 385.5--Safety fitness standard. Compliance with regulatory 
factors (1) Parts 387, & 390, (2) Parts 382, 383 & 391, (3) Parts 
392 & 395, (4) Parts 393 & 396, when there are less than three 
vehicle inspections in the last 12 months to evaluate, and (5) Parts 
397, 171, 177 & 180, will be evaluated as follows:
    For each instance of noncompliance with an acute regulation or 
each pattern of noncompliance with a critical regulation during the 
CR, one point will be assessed. A pattern is more than one 
violation. When large numbers of documents are reviewed the number 
of violations required to meet a pattern is equal to at least 10 
percent of those examined.
    However, each pattern of noncompliance with a critical 
regulation relative to Part 395, Hours of Service of Drivers, will 
be assessed two points.

Vehicle Factor

    When there are a combination of three or more inspections 
recorded in the Motor Carrier Management Information System (MCMIS) 
during the twelve months prior to the CR or performed at the time of 
the review, the Vehicle Factor (Parts 393 & 396) will be evaluated 
on the basis of the Out-of-Service (OOS) rates and noncompliance 
with acute regulations and/or a pattern of noncompliance with 
critical regulations. The results of the review of the OOS rate will 
affect the Vehicle Factor rating as follows:
    1. If a motor carrier has three or more roadside vehicle 
inspections in the twelve months prior to the carrier review, or 
three vehicles inspected at the time of the review, or a combination 
of the two totaling three or more, and the vehicle OOS rate is 34% 
or greater, the initial factor rating will be conditional. The 
requirements of Part 396--Inspection, Repair, and Maintenance, will 
be examined during each review. The results of the examination could 
lower the factor rating to unsatisfactory if noncompliance with an 
acute regulation or a pattern of noncompliance with critical 
regulation is discovered. If the examination of the Part 396 
requirements reveals no such problems with the systems the motor 
carrier is required to maintain for compliance, the Vehicle Factor 
remains conditional.
    2. If a carrier's vehicle OOS rate is less than 34%, the initial 
factor rating will be satisfactory. If noncompliance with an acute 
regulation or a pattern of noncompliance with a critical regulation 
is discovered during the examination of Part 396 requirements, the 
factor rating will be lowered to conditional. If the examination of 
Part 396 requirements discovers no such problems with the systems 
the motor carrier is required to maintain for compliance, the 
Vehicle Factor remains satisfactory.
    Nearly two million vehicle inspections occur on the roadside 
each year. This vehicle inspection information is retained in the 
MCMIS and is integral to evaluating motor carriers' ability to 
successfully maintain their vehicles. Since many of the roadside 
inspections are targeted to visibly defective vehicles and since 
there are a limited number of inspections for many motor carriers, 
the use of that data is limited. Each CR will continue to have the 
requirements of Part 396-Inspection, Repair, and Maintenance, 
reviewed as indicated by the above explanation.

Accident Factor

    In addition to the five regulatory rating factors, a sixth 
factor is included in the process to address the accident history of 
the motor carrier. This factor is the recordable accident rate which 
the carrier has experienced during the past 12 months. Recordable 
accident means an accident involving a commercial motor vehicle 
operating on a public road in interstate or intrastate commerce 
which results in a fatality; bodily injury to a person who, as a 
result of the injury, immediately receives medical treatment away 
from the scene of the accident; one or more motor vehicles incurring 
disabling damage as a result of the accident requiring the motor 
vehicle to be transported away from the scene by a tow truck or 
other motor vehicle.
    The recordable accidents per million miles were computed for 
each CR performed in Fiscal Year 1995. The national average for all 
carriers rated was 0.812, and 1.029 for carriers operating entirely 
within the 100 air mile radius.
    Experience has shown that those motor carriers operating 
primarily in less than a 100 air mile radius (normally in urban 
areas) have a higher exposure to accident situations because of 
their environment and normally have higher accident rates.
    The recordable accident rate will be used to rate Factor 6, 
Accident. It will be used only when a motor carrier incurs two or 
more recordable accidents within the 12 months prior to the CR. An 
urban carrier (a carrier operating entirely within the 100 air mile 
radius) with a recordable accident rate greater than 2.1 will 
receive an unsatisfactory rating for the accident factor. All other 
carriers with a recordable accident rate greater than 1.6 will 
receive an unsatisfactory factor rating. The rates are a result of 
doubling the national average accident rate for all carriers rated 
in Fiscal Year 1995.

Factor Ratings

    In the methodology, parts of the FMCSRs and the HMRs having 
similar characteristics are combined together into five regulatory 
areas called ``factors.''

[[Page 28833]]

    The following table shows the five regulatory factors, parts of 
the FMCSRs and HMRs associated with each factor, and the accident 
factor.

                                                     Factors                                                    
----------------------------------------------------------------------------------------------------------------
                                                                                                                
----------------------------------------------------------------------------------------------------------------
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...........................  Haz. Mat..............   =   Parts 397, 171, 177 and 180.                  
Factor 6...........................  Accident Factor.......   =   Recordable Rate.                              
----------------------------------------------------------------------------------------------------------------

    Factor Ratings are determined as follows:

``Satisfactory''--if the acute and/or critical = 0 points
``Conditional''--if the acute and/or critical = 1 point
``Unsatisfactory''--if the acute and/or critical = 2 or more points

Safety Rating

    The ratings for the six factors are then entered into a rating 
table which establishes the motor carrier's safety rating.
    The FHWA has developed a computerized rating formula for 
assessing the information obtained from the CR document and is using 
that formula in assigning a safety rating.

                    Motor Carrier Safety Rating Table                   
------------------------------------------------------------------------
                 Factor ratings                                         
------------------------------------------------- Overall safety  rating
        Unsatisfactory             Conditional                          
------------------------------------------------------------------------
0.............................  2 or less.......  Satisfactory.         
0.............................  More than 2.....  Conditional.          
1.............................  2 or less.......  Conditional.          
1.............................  More than 2.....  Unsatisfactory.       
2 or more.....................  0 or more.......  Unsatisfactory.       
------------------------------------------------------------------------

Anticipated Safety Rating

    The anticipated (emphasis added) safety rating will appear on 
the CR.
    The following appropriate information will appear after the last 
entry on the CR, MCS-151, Part B.
    ``It is anticipated the official safety rating from Washington, 
D.C. will be SATISFACTORY.''
        or
    ``It is anticipated the official safety rating from Washington, 
D.C. will be CONDITIONAL. The safety rating will become effective 
thirty days from the date of the CR.''
        or
    ``It is anticipated the official safety rating from Washington, 
D.C., will be UNSATISFACTORY. The safety rating will become 
effective thirty days from the date of the CR.''

Assignment of Rating/Motor Carrier Notification

    When the official rating is determined in Washington, D.C., the 
FHWA notifies the motor carrier in writing of its safety rating as 
prescribed in Sec. 385.11. An anticipated safety rating which is 
higher than the existing rating becomes effective as soon as the 
official safety rating from Washington, D.C. is issued. Notification 
of a conditional or unsatisfactory rating includes a list of those 
Parts of the regulations, or recordable accident rate for which 
corrective actions must be taken by the motor carrier to improve its 
overall safety performance.

Motor Carrier Procedural Rights

    Under Secs. 385.15 and 385.17, motor carriers have the right to 
petition for a review of their ratings if there are factual or 
procedural disputes, and to request another review after corrective 
actions have been taken.

Conclusion

    The FHWA believes this ``safety rating methodology'' is a 
reasonable approach for assigning a safety rating which best 
describes the current safety fitness posture of a motor carrier as 
required by the safety fitness regulations (Section 385.9).
    Improved compliance with the regulations leads to an improved 
rating, which in turn increases safety. This increased safety is our 
regulatory goal.

List of Acute and Critical Regulations

Sec. 382.115(c)  Failing to implement an alcohol and/or controlled 
substance testing program. (acute)
Sec. 382.201  Using a driver who has an alcohol concentration of 
0.04 or greater. (acute)
Sec. 382.211  Using a driver who has refused to submit to an alcohol 
controlled substances test required under Part 382. (acute)
Sec. 382.213(b)  Using a driver who has used a controlled substance. 
(acute)
Sec. 382.215  Using a driver who has tested positive for a 
controlled substance. (acute)
Sec. 382.301(a)  Failing to require driver to undergo pre-employment 
controlled substance testing. (critical)
Sec. 382.303(a)  Failing to conduct post accident testing on driver 
for alcohol and/or controlled substances. (critical)
Sec. 382.305  Failing to implement a random controlled substances 
and/or an alcohol testing program. (acute)
Sec. 382.305(b)(1)  Failing to conduct random alcohol testing at an 
annual rate of not less than 25 percent of the average number of 
driver positions. (critical)
Sec. 382.305(b)(2)  Failing to conduct random controlled substances 
testing at an annual rate of not less than 50 percent of the average 
number of driver positions. (critical)
Sec. 382.309(a)  Using a driver who has not undergone a return-to-
duty alcohol test with a result indicating an alcohol concentration 
of less than 0.02. (acute)
Sec. 382.309(b)  Using a driver who has not undergone a return-to-
duty controlled substances test with a result indicating a verified 
negative result for controlled substances. (acute)
Sec. 382.503  Driver performing safety sensitive function, after 
engaging in conduct prohibited by Subpart B, without being evaluated 
by substance abuse professional, as required by Sec. 382.605. 
(critical)
Sec. 382.505(a)  Using a driver within 24 hours after being found to 
have an alcohol concentration of 0.02 or greater but less than 0.04. 
(acute)

[[Page 28834]]

Sec. 382.605(c)(1)  Using a driver who has not undergone a return-
to-duty alcohol test with a result indicating an alcohol 
concentration of less than .02 or with verified negative test 
result, after engaging in conduct prohibited by Part 382 Subpart B. 
(acute)
Sec. 382.605(c)(2)(ii)  Failing to subject a driver who has been 
identified as needing assistance to at least six unannounced follow-
up alcohol and controlled substance tests in the first 12 months 
following the driver's return to duty. (critical)
Sec. 383.23(a)  Operating a commercial motor vehicle without a valid 
commercial driver's license. (critical)
Sec. 383.37(a)  Allowing, requiring, permitting, or authorizing an 
employee with a Commercial Driver's License which is suspended, 
revoked, or canceled by a state or who is disqualified to operate a 
commercial motor vehicle. (acute)
Sec. 383.37(b)  Allowing, requiring, permitting, or authorizing an 
employee with more than one Commercial Driver's License to operate a 
commercial motor vehicle. (acute)
Sec. 383.51(a)  Allowing, requiring, permitting, or authorizing a 
driver to drive who is disqualified to drive a commercial motor 
vehicle. (acute)
Sec. 387.7(a)  Operating a motor vehicle without having in effect 
the required minimum levels of financial responsibility coverage. 
(acute)
Sec. 387.7(d)  Failing to maintain at principal place of business 
required proof of financial responsibility. (critical)
Sec. 387.31(a)  Operating a passenger carrying vehicle without 
having in effect the required minimum levels of financial 
responsibility. (acute)
Sec. 387.31(d)  Failing to maintain at principal place of business 
required proof of financial responsibility for passenger vehicles. 
(critical)
Sec. 390.15(b)(2)  Failing to maintain copies of all accident 
reports required by State or other governmental entities or 
insurers. (critical)
Sec. 390.35  Making, or causing to make fraudulent or intentionally 
false statements or records and/or reproducing fraudulent records. 
(acute)
Sec. 391.11(a)/391.95  Using an unqualified driver, a driver who has 
tested positive for controlled substances, or refused to be tested 
as required. (acute)
Sec. 391.11(b)(6)  Using a physically unqualified driver. (acute)
Sec. 391.15(a)  Using a disqualified driver. (acute)
Sec. 391.45(a)  Using a driver not medically examined and certified. 
(critical)
Sec. 391.45(b)  Using a driver not medically examined and certified 
each 24 months. (critical)
Sec. 391.51(a)  Failing to maintain driver qualification file on 
each driver employed. (critical)
Sec. 391.51(b)(1)  Failing to maintain medical examiner's 
certificate in driver's qualification file. (critical)
Sec. 391.51(c)(1)  Failing to maintain medical examiner's 
certificate in driver's qualification file. (critical)
Sec. 391.51(c)(3)  Failing to maintain inquiries into driver's 
driving record in driver's qualification file. (critical)
Sec. 391.51(d)(1)  Failing to maintain medical examiner's 
certificate in driver's qualification file. (critical)
Sec. 391.87(f)(5)  Failing to retain in the driver's qualification 
file test finding, either ``Negative'' and, if ``Positive'', the 
controlled substances identified. (critical)
Sec. 391.93(a)  Failing to implement a controlled substances testing 
program. (acute)
Sec. 391.99(a)  Failing to require a driver to be tested for the use 
of controlled substances, upon reasonable cause. (acute)
Sec. 391.103(a)  Failing to require a driver-applicant whom the 
motor carrier intends to hire or use to be tested for the use of 
controlled substances as a pre-qualification condition. (critical)
Sec. 391.109(a)  Failing to conduct controlled substance testing at 
a 50% annualized rate. (critical)
Sec. 391.115(c)  Failing to ensure post-accident controlled 
substances testing is conducted and conforms with 49 CFR Part 40. 
(critical)
Sec. 392.2  Operating a motor vehicle not in accordance with the 
laws, ordinances, and regulations of the jurisdiction in which it is 
being operated. (critical)
Sec. 392.4(b)  Requiring or permitting a driver to drive while under 
the influence of, or in possession of, a narcotic drug, amphetamine, 
or any other substance capable of rendering the driver incapable of 
safely operating a motor vehicle. (acute)
Sec. 392.5(b)(1)  Requiring or permitting a driver to drive a motor 
vehicle while under the influence of, or in possession of, an 
intoxicating beverage. (acute)
Sec. 392.5(b)(2)  Requiring or permitting a driver who has consumed 
an intoxicating beverage within 4 hours to operate a motor vehicle. 
(acute)
Sec. 392.6  Scheduling a run which would necessitate the vehicle 
being operated at speeds in excess of those prescribed. (critical)
Sec. 392.9(a)(1)  Requiring or permitting a driver to drive without 
the vehicle's cargo being properly distributed and adequately 
secured. (critical)
Sec. 395.1(i)(1)(i)  Requiring or permitting a driver to drive more 
than 15 hours. (Driving in Alaska.) (critical)
Sec. 395.1(i)(1)(ii)  Requiring or permitting a driver to drive 
after having been on duty 20 hours. (Driving in Alaska.) (critical)
Sec. 395.1(i)(1)(iii)  Requiring or permitting driver to drive after 
having been on duty more than 70 hours in 7 consecutive days. 
(Driving in Alaska.) (critical)
Sec. 395.1(i)(1)(iv)  Requiring or permitting driver to drive after 
having been on duty more than 80 hours in 8 consecutive days. 
(Driving in Alaska.) (critical)
Sec. 395.3(a)(1)  Requiring or permitting driver to drive more than 
10 hours. (critical)
Sec. 395.3(a)(2)  Requiring or permitting driver to drive after 
having been on duty 15 hours. (critical)
Sec. 395.3(b)  Requiring or permitting driver to drive after having 
been on duty more than 60 hours in 7 consecutive days. (critical)
Sec. 395.3(b)  Requiring or permitting driver to drive after having 
been on duty more than 70 hours in 8 consecutive days. (critical)
Sec. 395.8(a)  Failing to require driver to make a record of duty 
status. (critical)
Sec. 395.8(e)  False reports of records of duty status. (critical)
Sec. 395.8(l)  Failing to require driver to forward within 13 days 
of completion, the original of the record of duty status. (critical)
Sec. 395.8(k)(1)  Failing to preserve driver's record of duty status 
for 6 months. (critical)
Sec. 395.8(k)(1)  Failing to preserve driver's records of duty 
status supporting documents for 6 months. (critical)
Sec. 396.3(b)  Failing to keep minimum records of inspection and 
vehicle maintenance. (critical)
Sec. 396.9(c)(2)  Requiring or permitting the operation of a motor 
vehicle declared ``out-of-service'' before repairs were made. 
(acute)
Sec. 396.11(a)  Failing to require driver to prepare driver vehicle 
inspection report. (critical)
Sec. 396.11(c)  Failing to correct Out-of-Service defects listed by 
driver in a driver vehicle inspection report. (acute)
Sec. 396.17(a)  Using a commercial motor vehicle not periodically 
inspected. (critical)
Sec. 396.17(g)  Failing to promptly repair parts and accessories not 
meeting minimum periodic inspection standards. (acute)
Sec. 397.5(a)  Failing to ensure a motor vehicle containing Class A 
or B explosives, (Class 1.1, 1.2, or 1.3) is attended at all times 
by its driver or a qualified representative. (acute)
Sec. 397.7(a)(1)  Parking a motor vehicle containing Class A or B 
explosives (1.1, 1.2, 1.3) within 5 feet of traveled portion of 
highway. (critical)
Sec. 397.7(b)  Parking a motor vehicle containing hazardous 
material(s) within 5 feet of traveled portion of highway or street. 
(critical)
Sec. 397.13(a)  Permitting a person to smoke or carry a lighted 
cigarette, cigar or pipe within 25 feet of a motor vehicle 
containing explosives, oxidizing materials, or flammable materials. 
(critical)
Sec. 397.19(a)  Failing to furnish driver of motor vehicle 
transporting Class A or B explosives (Class 1.1, 1.2, 1.3) with a 
copy of the rules of Part 397 and/or emergency response 
instructions. (critical)
Sec. 397.67(d)  Requiring or permitting the operation of a motor 
vehicle containing Division 1.1, 1.2, or 1.3 (explosive) material 
that is not accompanied by a written route plan. (critical)

[[Page 28835]]

Sec. 171.15  Carrier failing to give immediate telephone notice of 
an incident involving hazardous materials. (critical)
Sec. 171.16  Carrier failing to make a written report of an incident 
involving hazardous materials. (critical)
Sec. 177.800(a)  Failing to instruct a category of employees in 
hazardous materials regulations. (critical)
Sec. 177.817(a)  Transporting a shipment of hazardous materials not 
accompanied by a properly prepared shipping paper. (critical)
Sec. 177.817(e)  Failing to maintain proper accessibility of 
shipping papers. (critical)
Sec. 177.823(a)  Moving a transport vehicle containing hazardous 
material that is not properly marked or placarded. (critical)
Sec. 177.841(e)  Transporting a package bearing a poison label in 
the same transport vehicle with material marked or known to be 
foodstuff, feed, or any edible material intended for consumption by 
humans or animals. (acute)
Sec. 180.407(a)  Transporting a shipment of hazardous material in 
cargo tank that has not been inspected or retested in accordance 
with Sec. 180.407. (critical)
Sec. 180.407(c)  Failing to periodically test and inspect a cargo 
tank. (critical)
Sec. 180.417  Failing to mark a cargo tank which passed an 
inspection or test required by Sec. 180.407. (critical)
Sec. 180.417(a)(1)  Failing to retain cargo tank manufacturer's data 
report certificate and related papers, as required. (critical)
Sec. 180.417(a)(2)  Failing to retain copies of cargo tank 
manufacturer's certificate and related papers (or alternative 
report) as required. (critical)

[FR Doc. 97-13873 Filed 5-27-97; 8:45 am]
BILLING CODE 4910-22-P