[Federal Register Volume 62, Number 215 (Thursday, November 6, 1997)]
[Rules and Regulations]
[Pages 60035-60046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29380]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 385
[FHWA Docket Nos. MC-94-22 and MC-96-18; FHWA-97-2252]
RIN 2125-AC 71
Safety Fitness Procedure; Safety Ratings
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: This document incorporates a Safety Fitness Rating Methodology
(SFRM) as an appendix to the Motor Carrier Safety Fitness Procedures
regulations. The SFRM will be used to measure the safety fitness of
motor carriers against the safety fitness standard contained in 49 CFR
Part 385. By this action the FHWA will supersede the interim final rule
promulgated on May 28, 1997, effective May 28, 1997 until November 28,
1997 (62 FR 28807). That rule incorporated an SFRM to calculate the
safety fitness of motor carriers transporting hazardous materials in
quantities for which vehicle placarding is required, or transporting 15
or more passengers including the driver. The rule also includes a
procedure which provides a notice period of 45 days during which a
proposed rating can be challenged before it becomes effective.
DATES: The effective date of this regulation is November 28,1997.
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:
Introduction
The FHWA is taking this action largely in response to a finding of
the District of Columbia Circuit Court of Appeals, infra. This final
rule is required to meet the FHWA's responsibility to maintain a system
to determine the safety fitness of motor carriers operating in
interstate commerce, but the agency is considering other means to
achieve that goal.
Some commenters to this docket argued that a performance-based
system modeled on SafeStat would be fair, and perhaps preferable to the
system proposed in the FHWA's May 28 NPRM, infra, but that improvements
are needed in the generation and use of data.
The FHWA's goal is to create a more performance-based means of
determining when carriers are not fit to conduct commercial motor
vehicle (CMV) operations safely in interstate commerce. A future rating
system using a pass-fail test is conceivable. The FHWA will publish an
advanced notice of proposed rulemaking shortly in the Federal Register
requesting comments and supporting data on the future of a rating
system that can be used both in making safety fitness determinations
and in meeting the demands of shippers, insurers and other present and
potential users interested in evaluating motor carrier performance.
Background
The U.S. Court of Appeals for the District of Columbia Circuit
ruled on March 19, 1997, 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, 108 F.3d 401 (D.C. Cir. 1997). The court found 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 SFRM had not been
adopted pursuant to notice and comment rulemaking, as 49 U.S.C.
31144(a) requires. The safety rating of MST Express was determined
using the SFRM, and the petitioner's conditional safety rating was
therefore vacated and the matter remanded to the FHWA ``for such
further action as it may wish to take, consistent with the decision.''
[[Page 60036]]
In response to the court's decision the FHWA issued an interim
final rule (62 FR 28807) effective May 28, 1997, adopting the
challenged SFRM but only to rate motor carriers transporting hazardous
materials or passengers pending the development of a permanent rule.
This step was necessary in order to enable the agency to comply with
the mandate of the MCSA of 1990 (49 U.S.C. 5113), which requires that
passenger and hazardous materials carriers cease operations within 45
days of being rated unsatisfactory.
In a notice of proposed rulemaking (NPRM) (62 FR 28826), also
published on May 28, 1997, the FHWA proposed to modify the SFRM,
incorporate it as Appendix B to Part 385, and use it in the process of
deciding whether all motor carriers meet the safety fitness
requirements.
The FHWA had been using an SFRM, comprised of six rating factors,
since October 1, 1989, as the mechanism for calculating how well motor
carriers adhere to 49 CFR 385.5, Safety fitness standard. In addition
to making the detailed explanation of the SFRM publicly available since
August 16, 1991, the FHWA issued notices seeking comments from the
public in FHWA Docket Nos. MC-91-8 and MC-94-22.
In the first docket, the FHWA solicited public comment on an
interim final rule (56 FR 40801) (August 16, 1991) implementing the
provision of the MCSA of 1990 prohibiting a motor carrier with an
unsatisfactory safety rating from operating 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, and those which provided
information relevant to the May 28, 1997, NPRM were discussed in that
document.
In the second docket, initiated by a notice published in the
Federal Register on September 14, 1994 (59 FR 47203), the FHWA
requested comments on changes made to the SFRM in 1993. Additional
changes to the SFRM, which were to become effective on October 1, 1994,
were also explained and comments were invited. 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) The direction that
future modifications to the SFRM should take, and (2) 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 the second docket were
discussed in the May 28, 1997, NPRM to the extent they provided
relevant information.
On April 29, 1996, the FHWA proposed to reorganize and revise its
procedural rules, including those related to the assignment of ratings
(61 FR 18866). Among the revisions proposed was a procedure for the
issuance of a notice of proposed rating which provided a 45-day period
within which a motor carrier could challenge a proposed rating before
it became effective. The procedure also provided relief from an adverse
rating to carriers that were willing to make credible, effective and
verifiable commitments to improved management and performance.
Discussion of Comments
Thirty two comments were received in response to the May 28, 1997,
interim final rule (62 FR 28807) and NPRM (62 FR 28826). Only a few of
the 125 comments received in response to the April 29, 1996 NPRM on
procedural rules addressed the notice of proposed rating provision.
Purpose of Safety Ratings
The Transportation Lawyers Association (TLA) suggested that the
FHWA undertake a thorough evaluation of its entire program by first
recognizing that the current rating system serves two purposes,
information (i.e., the rating) and enforcement. It recommended the FHWA
separate the rating from enforcement as it believes that combining them
is unworkable.
The American Trucking Associations (ATA) stated that the current
SFRM is based on the premise that a lack of ``safety management
controls'' is indicative of an unsafe carrier, yet it does not believe
the FHWA has demonstrated that a lack of compliance will cause a
carrier to be unsafe.
The safety rating provides information, both to the rated carrier
and anyone else inquiring about the rating, concerning the degree of
adherence by the motor carrier to the Part 385 safety fitness standard.
Enforcement is an aspect of the rating only in the sense that a motor
carrier with an unsatisfactory rating is prohibited from transporting
hazardous materials requiring placarding or 15 or more passengers
including the driver. Congress, however, mandated this result by
enacting the prohibition against transportation by such carriers in the
MCSA of 1990. The FHWA, moreover, believes that sufficient data exists
to conclude that motor carriers with inadequate safety management
controls, i.e., less than satisfactory compliance with the safety
fitness standard, are more likely to have higher accident rates. In
addition, the FHWA has commissioned research by the Volpe National
Transportation Systems Center, part of the Research and Special
Programs Administration, to assess the performance of the CR program
through the development of an Impact Assessment Model. Preliminary
indications are that CR activity, due to its educational, safety
awareness and sanction aspects, has substantial crash reduction
benefits.
Accident Factor
The National Tank Truck Carriers (NTTC), Rocor Transportation (RT),
Truckload Carriers Association (TCA), American Movers Conference (AMC),
the ATA, Oregon Department of Transportation, Motor Carrier
Transportation Branch (ODOT/MCTB), and Ryder System, Inc. (RS)
supported the proposal to adopt a recordable accident rate for the
accident factor of the SFRM. The Advocates for Highway and Auto Safety
(AHAS) questioned the statement in the NPRM that ``The data indicate
that the vast majority of all accidents have been determined to be
preventable.''
Santee Carriers (SC) , Vertex Chemical Corporation (VC), and the
Owner Operator Independent Drivers Association, Inc. (OOIDA) wanted to
retain the recordable preventable accident criteria for the accident
factor, as this would measure accidents within the carrier's control,
and OOIDA would like the ``preventability'' determination made more
objective. The TCA stated that the FHWA has yet to define the criteria
to be used in determining preventability.
The Association of Waste Hazardous Materials Transporters (AWHMT),
Distribution & LTL Carrier Association (DLCA), the VC, Petroleum
Marketers Association of America (PMAA) and the ATA recommended
determining accident rates on a multi-year basis. They believe a multi-
year standard is more reflective of the average accident rate. The TCA
and the NPTC recommended that there be a midpoint between accident
rates of 1.6 and 2.1 to
[[Page 60037]]
define an unsatisfactory rating in the accident factor for carriers
with some specified significant portion, though not all, of their
mileage in urban areas.
The TCA, the AMC, Agricultural Transporters Conference (ATC),
California Highway Patrol (CHP) and the RS recommended adopting
different accident rates for particular industry segments and types of
operations. The PMAA believes that the proposed 2.1 accident rate is
unfair for its short haul carriers because most of their mileage occurs
in heavy traffic environments. A similar concern was expressed by the
VC and the OOIDA.
The RI and the NPTC opposed removing the conditional level in the
accident factor rating. The AHAS opposed a single tier rating for the
accident factor as motor carriers not assigned an unsatisfactory factor
rating could not be distinguished from unrated carriers. They also
opposed continuation of the exception for carriers with less than 20
drivers (these carriers could not be rated less than conditional for
the accident factor) as they believe some of these carriers could have
very high accident rates.
The DLCA, the TCA, the AWMT, the VC, the NADA, the ATA, New Mexico
Motor Carrier's Association (NMMCA), and the CHP wanted the FHWA to use
only ``at fault'' accidents, those determined by law enforcement
officers to be the fault of the CMV driver or those otherwise clearly
attributable to the fault of the CMV driver or carrier, for rating the
accident factor.
The NPTC, the ATA and the AHAS questioned whether doubling the
national average is appropriate, as poor mileage information undermines
accurate calculation of accident rates. The NPTC stated that the FHWA
presented no statistical data for doubling the accident rate, and that
a more appropriate reference would be the median accident rate.
The FHWA has carefully considered all of the comments and for the
following reasons believes it is reasonable to use the recordable
accident rate for evaluating the accident factor. The data from Fiscal
Years 1994, 1995 and 1996 in Recordable Rate (RR) and Recordable
Preventable Rate (RPR) is as follows: 1994: RR=.804; RPR=.553; 1995:
RR=.724; RPR=.528; 1996: RR=.713; RPR=.503. The FHWA has increasingly
focused CRs on carriers most likely to have accidents, thus, the rates
for reviewed carriers are higher than the rates would be for all
carriers subject to the Federal Motor Carrier Safety Regulations
(FMCSRs). The recordable accident rates used were taken from all CRs
performed in Fiscal Years 1994, 1995 and 1996, which addresses the
concern that the average accident rate should be on a multi-year basis.
The average recordable rate was .747, and the average recordable rate
for carriers operating entirely within a 100 air mile radius was .839
per million miles. Recent analysis of accident rates for all carriers
showed only small differences in rates by fleet size, and the
differential between recordable and recordable preventable accidents
was consistent by fleet size. The FHWA will rate the accident factor
only when a carrier has two or more accidents in the 12 months prior to
the CR. A single accident could easily place a small carrier, or a
larger carrier operating very few miles, over the threshold for the
unsatisfactory factor rating, which is not a reliable outcome. By using
only the unsatisfactory rating the FHWA believes it is sending a
message that any accident is unacceptable; however, only those carriers
that are over the threshold will be identified in the factor rating. A
motor carrier with an accident rate twice the average rate for all
similarly situated carriers is most likely to have inadequate or
improperly functioning safety management controls.
An urban carrier (a carrier operating entirely within the 100 air
mile radius) with a recordable accident rate over 1.7 (approximately
twice the 1994-96 average of .839) will receive an unsatisfactory
factor rating. All other carriers with a recordable accident rate
greater than 1.5 (approximately double the 1994-96 average of .747)
will receive an unsatisfactory factor rating.
The FHWA stated in the NPRM, ``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.'' The FHWA reviewed the data
relative to the statement in the NPRM that ``the vast majority of all
accidents have been determined to be preventable.'' The statement
should have said simply that the majority of all accidents are
preventable, as approximately two thirds of recordable accidents are
preventable.
The SFRM is the means by which the FHWA calculates a motor
carrier's adherence to the Sec. 385.5 safety fitness standard. As it is
a method and not an absolute criterion, the FHWA will continue to
consider non-preventability of accidents when a motor carrier contests
a rating by presenting compelling evidence that the recordable rate, as
applied to its particular circumstances, is not a fair means of
evaluating its accident factor. An example would be a motor carrier
that had two recordable accidents in the 12 months prior to the CR and
in both accidents its' CMVs were rear-ended when stopped for a signal
light. The FHWA believes there will be relatively few instances where a
motor carrier will be able to avail itself of the non-preventability
defense to an adverse rating based on the accident factor. Retaining
the non-preventability exception provides motor carriers the ability to
present information that their accident factor should undergo a second-
level evaluation. Adopting the 45-day notice of proposed rating
procedure will allow for such second-level review in a meaningful
manner.
The FHWA is continuing to evaluate the possibility of setting
different accident-rate thresholds for different types of
transportation, extending the urban carrier threshold to carriers that
are not exclusively urban, and establishing a different threshold for
an unsatisfactory accident factor rating for carriers with very few
accidents, as opposed to those with many accidents. No such changes are
included in this final rule, however.
The FHWA will continue to examine the accident data in the Motor
Carrier Management Information System (MCMIS) as a means to evaluate
all carriers' accident rates. This source of information is
increasingly reliable. The states and their subdivisions have uploaded
their accident data more timely and accurately with each year since the
National Governors Association accident reporting system was
inaugurated in 1992.
Objectivity of Ratings
The DLCA and the ATA argued that there is too much variance by
regions in the rating process. Further, the ATA stated that CRs must be
performed uniformly throughout the country, and the ``findings of the
CR must accurately reflect the overall safety posture of the motor
carrier.'' It also commented that ``the CR and rating processes should
not be overly influenced by the attitude of individual investigators
and the results should not be different depending on a motor carrier's
geographical location.''
The FHWA believes that, having modified the SFRM to rate motor
carriers on the basis of actual violations of ``acute'' regulations and
patterns of violations of ``critical'' regulations and to measure
performance by recordable accidents and vehicle out-of-service (OOS)
rates from roadside driver/vehicle inspections, the safety rating
process has been made more objective. The regulations identified as
``acute''
[[Page 60038]]
and ``critical'' enable the motor carriers with adequate safety
management controls to direct their initial compliance efforts toward
these regulations. There should not be a pattern, i.e., a 10 percent
violation rate, of `critical' regulations by motor carriers exercising
due diligence in their efforts to comply with the regulations. The FHWA
continues to work toward making the CR process as fair and as uniform
as possible. The agency believes that an important aspect of national
uniformity in the performance of CRs is the review of a relatively
constant number of vehicles, drivers, and records which varies with the
number of vehicles and drivers performing transportation for the
carrier. The minimum number of vehicles, drivers, and records to review
is derived from a sampling chart, which provides guidance to the
individual performing the CR. It is relevant that motor carriers are
required to comply with all applicable FMCSRs and Hazardous Materials
Regulations (HMRs). Thus, to perform a CR based on a random sample of a
carrier's drivers, vehicles and records would be counter-productive in
determining if the carrier was complying with regulatory requirements
and meeting the Safety fitness standard in Sec. 385.5.
``Acute'' and ``Critical'' Regulations
The AHAS and the AWHMT believe that the FHWA has not explained why
regulations are categorized as ``acute'' or ``critical.'' The AWHMT
questioned the designation of certain regulations as ``critical'' and
argued that they should be ``acute'' regulations. The AWHMT also wanted
to know the FHWA's rationale for the ``10 percent threshold when
assessing points to carriers for a pattern of violations of a
``critical'' regulation,'' and also asked what is meant by ``large
numbers'' concerning the pattern of violations when ``critical''
regulations were discussed. The AHAS is concerned with FHWA's comment
that ``even a carrier with effective safety management controls will
likely violate some of the `critical' regulations.'' The AHAS also
wanted violations of ``acute'' regulations to be cited even when the
motor carrier did not have knowledge or could not reasonably be
expected to have knowledge of the violation.
The FHWA has categorized certain regulations as ``acute'' or
``critical'' based on the experience of the Federal field staff and
State enforcement officials. As the terms imply, such regulations have
a potential or actual impact on operational safety, and a carrier's
compliance with them is a direct indication of its ability effectively
to manage the complex operations needed to make it a responsible user
of the public highways. The FHWA believes that even motor carriers with
effective safety management controls may incur some violations of
``critical'' regulations, notwithstanding systematic review of their
compliance with the regulations. This is so because of the necessity
for remote and often post hoc monitoring by a safety manager. A motor
carrier that reviews drivers records of duty status (RODS) and
discovers three instances out of 100 RODS reviewed where drivers
exceeded the 10-hour driving limitation in Sec. 395.3(a)(1), may take
appropriate actions to discipline the drivers, but the violations have
still occurred. The carrier is not in total compliance, but the 97
instances where compliance was found indicates the carrier's safety
management controls are effective. A violation rate over the ``10
percent threshold'' is used as an indication that a pattern of
noncompliance is detectable and tolerated.
The FHWA has reviewed the reference in the SFRM to ``large numbers
of documents'' found in (62 FR 28832). The agency was attempting to
convey the principle that a pattern of violations is more than an
isolated instance of noncompliance. There was no intent to imply a
specific number of documents. To clarify its intent the sentence now
reads: ``When a number of documents are reviewed, the number of
violations required to meet a pattern is equal to at least 10 percent
of those examined.'' The preceding sentence remains ``A pattern is more
than one violation.'' Concerning the AHAS recommendation that the FHWA
should cite the carrier for all violations of ``acute `` regulations,
the FHWA believes its proposed policy was and is correct. Violations of
``acute'' regulations will not be cited on the CR or used in the SFRM
if, under the circumstances, the carrier did not know, and could not
reasonably be expected to have known, of a violation that the driver
deliberately concealed from the carrier. Because of the nature of
``acute'' regulations, however, such omissions are expected to be rare.
Vehicle Factor
The AWHMT wanted to know if the FHWA plans to adjust the 34 percent
OOS rate for the vehicle factor. The NTTC, the TCA and the AMC
recommended that the FHWA consider not assigning any weight to OOS
violations in the vehicle factor until the NTTC's petition to
incorporate into the FMCSRs the current OOS criteria published by the
Commercial Vehicle Safety Alliance and maintained in concert with the
FHWA, is finally disposed of. One association noted that good roadside
inspections are often not documented. Rocor Transportation found the
current criteria for the vehicle factor acceptable.
The FHWA will continue to rate the vehicle factor as proposed in
the NPRM as it believes this is an appropriately objective way to
evaluate the carrier's performance. Whether the OOS criteria should be
incorporated into the FMCSRs is an issue unrelated to the validity of
those criteria as a measure of vehicle safety. The OOS criteria are
essentially enforcement tolerances, as Sec. 396.3(a)(1) requires that
parts and accessories be in safe and proper operating condition at all
times.
The 34 percent OOS rate is the first indicator in evaluating the
vehicle factor when a motor carrier has three or more roadside
inspections in the 12 months prior to the review, or three vehicles
inspected at the time of the CR, or a combination of the two. If the
OOS rate is 34 percent or greater, the initial factor rating is
conditional. The reason for the three inspections is that the agency
wanted the vehicle OOS rates to be an aspect of the factor rating for
as many carriers as possible, but did not want one OOS vehicle
inspection to impact the factor rating. The vehicle OOS rate for Level
I (full) inspections has been between 27.9 percent and 36.2 percent for
the last five fiscal years. Generally, roadside inspections are not
random. Vehicles that appear to have defects are sometimes selected
from the traffic stream at scales, or vehicles of carriers that have no
or few inspections in the MCMIS are selected for inspection. Therefore,
the average OOS rate based on selected sampling is approximately one-
third of the vehicles inspected. The FHWA believes setting the rate at
34 per cent for the initial factor rating of conditional is
appropriate, as a carrier with only one vehicle out of three inspected
placed OOS will not have the factor rating affected. The FHWA is aware
that some vehicles receive a cursory inspection at a scale facility,
which does not produce an inspection report when no defects are
discovered. The FHWA will consider adjusting the 34 percent first
indicator should there be a significant change in the Level I vehicle
OOS rate.
The second indicator in the vehicle factor is the compliance with
the Part 396 regulatory requirements. If noncompliance with an
``acute'' regulation or a pattern of noncompliance with a ``critical''
regulation is discovered, the initial
[[Page 60039]]
conditional factor rating will be lowered to unsatisfactory.
For carriers with fewer than three inspections in the 12 months
prior to the CR, or three vehicles inspected at the time of the review,
or a combination of the two totaling three, the vehicle factor will be
evaluated on the basis of compliance with ``acute'' and ``critical''
regulations. This is the same method for evaluating the other
regulatory factors.
Selection of Records for Review
A number of the commenters reiterated that the FHWA should sample
records randomly for safety rating purposes, although they agreed that
targeted selection of records is appropriate for enforcement purposes.
They cited studies of the way the FHWA selects records for CRs, and
concluded that the selection method ``does not yield a representative
picture of the state of the carrier's safety record.'' They suggest
that for rating purposes the information should be generated by a
review in which motor carrier records would be examined on a purely
random basis, according to generally accepted statistical practices, in
order to present a fair picture of the carrier's safety compliance in a
broad context. One commenter believes this will remove some of the
alleged subjectivity from the current system. Another commenter
suggests the FHWA go beyond a random sample requirement for CRs and
give the carrier the option of substituting a 100 percent universal
sample, probably in the form of electronic records.
One commenter quoted a recent memorandum from OMC's Office of Field
Operations to the Regional Directors which indicates that ``all
references to the `International Standard of Sampling' have been
removed from the Field Operations Manual.'' The commenter's concern was
that this action ``is inconsistent with both the interim final rule and
the notice of proposed rulemaking,'' which indicated that the FHWA
currently uses and proposes this standard.
The International Brotherhood of Teamsters (IBT) noted that the May
28,1997, NPRM did address the sampling issues, and it found the reasons
supporting the current sampling methodology persuasive. The IBT also
stated that the proper objective is to focus scarce enforcement
resources where the problems are most likely to occur.
The FHWA has carefully considered these comments and believes it is
in the best interest of public safety to continue to focus its limited
resources on drivers and vehicles most likely to be in violation of the
regulations. The overall safety posture of the motor carrier is not
being measured during the CR, rather the ``adequacy of the carrier's
safety management controls'' is being assessed pursuant to Sec. 385.5.
The references to the International Standard of Sampling have been
removed from the Field Operations Training Manual, as the FHWA is
making it very clear that the sampling chart, which has not been
changed, is intended only for purposes of determining the minimum
number of records to be reviewed, depending on the size of the carrier.
The agency does not want to give the false impression that full-scale
random sampling procedures are being used. Motor carriers are equally
able to use the same indicators the FHWA uses when the carriers are
monitoring the performance of their drivers and vehicles to assure
compliance with the FMCSRs and HMRs. It is important to note that a
satisfactory safety rating is only a passing grade and that full
compliance with all of the safety regulations should be the objective
of every carrier and every driver. It is also the best way to avoid a
rating with adverse consequences to the carrier's operations.
Opportunity To Challenge a Rating
A registered practitioner and regulatory analyst recommended that
there should be a procedure to enable a motor carrier that challenges a
safety rating to obtain a stay of the effectiveness of that rating
until the challenge has been heard and decided. The TLA recommended
that the carrier have a means of correcting inaccurate information
before the safety rating is issued. These recommendations are
consistent with proposals made in response to the April 29,1996, NPRM
to amend the FHWA's rules of practice for motor carrier proceedings.
The NPRM proposed that motor carriers receive a ``Notice of Proposed
Rating'' before a safety rating was issued (61 FR 18866,18884). The
comments overwhelmingly supported that proposal.
One State enforcement agency argued that, ``in the interest of the
traveling public,'' the 45-day grace period for passenger and hazardous
material carriers that receive an unsatisfactory safety rating should
be waived and the rating should become effective immediately. The MCSA
of 1990 requires that motor carriers be afforded 45 days after receipt
of an unsatisfactory safety rating before the prohibition against
transportation becomes effective. The National Automobile Dealers
Association (NADA) was satisfied that carriers are afforded reasonable
due process. The AHAS strenuously opposed the suppression of the rating
results during the 45-day challenge period, which, of course, would
defeat the purpose of the provision, i.e., to afford the opportunity to
be heard before a potentially damaging judgment is rendered.
The FHWA has considered these comments and is amending Sec. 385.11,
Notification of a safety rating, to incorporate a notice-of-rating
procedure for all less than satisfactory ratings. A proposed safety
rating of unsatisfactory or conditional will become the final rating 45
days after the date the notice of proposed safety rating is received by
the motor carrier, unless the carrier petitions for a review and the
petition is granted. The proposed-rating procedure parallels the
requirement in the MCSA of 1990 that a motor carrier receiving an
unsatisfactory safety rating be given 45 days to improve its rating
before the ban on the transportation of hazardous materials and
passengers takes effect. It eliminates a distinction between carriers
based on type of operation by giving advance notice of the proposed
adverse rating in all cases. This will afford all carriers the
opportunity to be heard during that period before consequences attach.
This provision was published for notice and comment on April 29, 1996
(61 FR 18866, 18884) and was welcomed by virtually all of those who
commented on it. Under the circumstances, the agency believes that a
supplemental notice of proposed rulemaking to republish the proposal
under this docket would be superfluous and is therefore unnecessary
under the Administrative Procedure Act.
As a result of amending Sec. 385.11, related sections in Part 385
were also revised to incorporate those changes.
Point Assessment for Violations of ``Acute'' and ``Critical''
Regulations
One commenter wanted all of the factor 3 (Hours of Service)
``critical' regulations to be aggregated to meet the 10 percent pattern
definition when violations are discovered. For example, violations of
the 10-hour rule and the 70-hour rule would be treated as part of the
same pattern. Another commenter agreed with the higher weighting of
patterns of factor 3 ``critical'' regulations. Another commenter stated
that the motor carrier should not be penalized for willful hours of
service violations by its drivers.
A number of commenters argued that patterns of violations of
``critical'' hours of service regulations should not be assessed two
points, as they did not believe existing research establishes a causal
relationship between those
[[Page 60040]]
violations and accidents. Another commenter stated that the current
policy of two points for hours of service violations is one of
``absolute liability for hours of service violations'' and is
irrational.
The ODOT/MCTB stated that although ``recent studies indicate time
of day and the amount and quality of rest may be more critical factors
than driving hours, and we are still obligated to enforce the current
regulation to ensure an optimum level of performance.'' The commenter
does not believe that doubling the points for factor 3 is appropriate
unless there is a violation of cumulative on-duty time and
falsification of records for the purpose of concealing excessive on-
duty time. The ATA noted that several fatigue related studies which
were placed in the docket as supplemental information, show that there
is no simple way to measure fatigue. This is further evidence, the ATA
wrote, that the connection between hours of service violations, fatigue
and accidents is extremely complex and not fully understood. Thus, the
ATA believes it would be inappropriate to give twice the weight to
hours of service violations. The IBT agreed with the FHWA's proposal to
retain a higher weighting factor for violations of Part 395
``critical'' regulations.
After careful consideration of the comments, the FHWA remains
convinced that the current regulations do have an impact in preventing
the risks of driver fatigue and that they must be enforced until new
regulations are developed. There have not been any studies that have
discounted time on task as a significant contributor to fatigue. The
observations of the ODOT/MCTB and the ATA about the complexity of the
connection between hours of service violations, fatigue, and accidents,
do not provide a rational basis for rulemaking changes. Moreover, 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
must have demonstrated a pattern of noncompliance with a ``critical''
regulation. The FHWA believes that motor carriers with effective safety
management controls should be able to maintain a noncompliance rate of
less than 10 percent for any of the Part 395 ``critical'' regulations.
Therefore, until the ongoing rulemaking efforts to better regulate
fatigue are concluded, the FHWA believes it is important to continue to
assign two points for a pattern of violations of a Part 395
``critical'' regulation.
Rating Factors
One commenter suggested that the accident factor have more weight
than the other factors. Another commenter believes that until research
is conclusive that one factor has a more significant impact on safety
compared to the others, equal weight should be given to each factor.
This difference in the commenters' responses is indicative of the
problem the FHWA faces. While an accident is unquestionably a more
serious event than any particular regulatory violation, there is good
reason to believe that regulatory violations are causally related to
accidents. The 1988 workgroup which developed the six factors in the
SFRM was unable to determine that any of the six factors was more
important to safety fitness than any other, and each factor was
therefore given equal weight. (Although the Operations factor includes
a double-weighting of patterns of violations of Part 395 ``critical''
regulations, a pattern requires that at least ten percent of the
records of duty reviewed be in violation. During virtually all CRs a
minimum of at least one hundred fifty RODS are reviewed for compliance
with Part 395 ``critical'' regulations. Carriers with adequate safety
management controls will be able to keep the rate of noncompliance
under ten percent for any of these ``critical'' regulations. The only
regulatory control on fatigue is the current hours of service
requirements. The fact that a ``pattern'' of violations cannot occur
unless at least ten percent of the RODS checked fail to comply with the
regulations; that Part 395 includes no ``acute'' regulations; and that
at least 150 RODS are typically reviewed, virtually eliminating the
possibility of statistical accidents--all of these tend to balance the
double weighting of patterns of violations of Part 395, resulting in a
factor with roughly the same weight as any other. In the absence of
clear evidence that one or more of the rating factors has a greater
impact on safety or is a better index of the carrier's safety
management controls, the FHWA has concluded that it must continue to
place equal weight on each of the factors.
Safety Profiles
A number of the commenters were concerned about the accuracy of the
information in the carrier profiles. Two commenters wanted the carrier
to be presented in advance of the CR with ``a record of violations upon
which an auditor intends to rely, so that the carrier has an
opportunity to protect and defend its record and identify any
inaccuracies before its safety performance is judged.'' They also were
concerned about the timeliness of the data and wanted stale violations
removed from the carrier's record. Two commenters suggested that
carriers be provided a continuing opportunity to challenge the accuracy
of the entries in their carrier profiles, and a process to correct the
profiles when errors are discovered. They stated that it is ``virtually
impossible to get a profile corrected under the current system.''
Motor carriers have access to their carrier profiles in the MCMIS,
thus, there is little justification for presenting motor carriers in
advance of the CR with the information in their carrier profile. The
FHWA has consistently recommended that when errors from a State source
are discovered in a motor carrier's safety profile, they should be
brought to the attention of the State that performed the inspection or
entered invalid or incorrect information into Safetynet. The FHWA is
aware of only several instances where a State, when apprised of an
error by a motor carrier, was unable or unwilling to correct the error.
If motor carriers are unable to resolve the discrepancy with the State,
they should contact the OMC Office of Motor Carrier Information
Analysis (telephone (202) 366-4039). This office will work with the
State, or if appropriate, correct the error in the safety profile on
its own initiative. The FHWA continues to work with its State partners
to improve the quality of the data in motor carrier safety profiles.
Implementation of Proposed SFRM
A number of the commenters opposed the implementation of the
proposed SFRM, which they viewed as a ministerial task to comply with
the findings of the Court in the MST Express case. Several of these
commenters referred to the June 18, 1997, Motor Carrier Safety Audit
and Rating Forum sponsored by the ATA, which they stated was held to
build a consensus on the future of the safety rating process. It
concluded that the current system must be replaced with a fairer, more
uniform performance-based system.
The ATA wanted the ``new era'' concept of safety performance to be
based less on regulatory compliance and more on ``performance
measurements,'' e.g., accident rates, driver and vehicle OOS rates,
driver traffic convictions, and violations of OOS orders. Other
commenters agreed.
The ODOT/MCTB commented that, ``as proposed, the MCSFR [motor
carrier safety fitness rating] methodology represents the best
collection of safety information for a motor carrier currently
[[Page 60041]]
available.'' It stated that ``the fact that only `acute' and `critical'
regulations affect the safety rating adds further credibility to the
safety rating process. It is Oregon's opinion that the dreaded `paper
work' violations are not included in either the `acute' or `critical'
regulations.'' The IBT also recommended that the FHWA adopt the SFRM as
proposed.
The FHWA believes that the proposed SFRM establishes a fair and
reasonable procedure to decide the safety fitness of owners and
operators of CMVs. It also meets the statutory mandate (49 U.S.C.
31144) because it includes:
(a) specific, initial and continuing requirements to be met by the
owners, operators, and other persons to prove safety fitness;
(b) a means of deciding whether the owners, operators, and other
persons meet the safety fitness requirements in (a); and
(c) specific time deadlines for action by the FHWA in making
fitness determinations.
Miscellaneous
Several sections in Part 385 are amended to correct previous
technical errors. The definition of ``Safety review'' in Sec. 385.3 is
removed since Safety Reviews were discontinued as of October 1, 1994.
The definitions of Conditional safety rating and Unsatisfactory safety
rating in Sec. 385.3 are revised to include references to Sec. 385.5
(i) through (k), dealing with hazardous materials and accidents. These
subsections were inadvertently omitted when the final rule was
published on December 19, 1988 (53 FR 50961). Section 385.9 is revised
to include a subsection (b) to meet the requirement in 49 U.S.C.
31144(a)(1)(C) that there be specific time deadlines for action by the
Secretary in making fitness decisions.
Section 385.17 is revised in a number of ways. The FHWA published a
proposed revision of Sec. 385.17 for notice and comment under FHWA
Docket No. MC-96-18 on April 29, 1996 (61 FR 18866, 18884), where it
was designated as Sec. 362.107. In addition to explaining more clearly
the process to request a safety rating change based on corrective
actions taken, that provision would have given carriers whose request
was denied new rights to administrative review. Commenters favored this
change almost unanimously. In order to make these rights available to
motor carriers as soon as possible, the proposed provision designated
as Sec. 362.107 in the April 29 NPRM has been incorporated into this
final rule, with minor changes, as Sec. 385.17. Many parties concerned
about the safety rating system submitted comments in response to the
April 29, 1996, NPRM and the May 28, 1997, NPRM that opened this
docket. Because the amended version of Sec. 385.17 has already been
published for notice and comment, though under a different docket and
with a different section number, the FHWA finds good cause (pursuant to
5 U.S.C. 553(b)(B)) to adopt Sec. 385.17, and the related amendments to
Secs. 385.11, and 385.15, which were also published in the April 29
NPRM, without re-publishing them under this docket as a Supplemental
NPRM.
The current appendix to Part 385 is redesignated as appendix A. The
Explanation of Safety Rating Process is added as appendix B. Changes to
appendix B from the appendix in the NPRM are a result of using several
years accident rates instead of one year for the accident rates in the
accident rating factor, and editorial changes for clarity. Appendix B
is further changed by substituting ``proposed rating'' for
``anticipated rating'', to conform with the procedure in
Sec. 385.11(b).
Rulemaking Analyses and Notices
For the reasons given below, the FHWA finds good cause to make this
final rule effective less than 30 days after the date of publication.
The interim final rule adopting a Safety Fitness Rating Methodology
(SFRM) was promulgated on May 28, 1997 (62 FR 22807), and will expire
on November 28, 1997. That rule allows the FHWA to assign safety
ratings to motor carriers which use CMVs to transport 15 or more
passengers, including the driver, or hazardous materials in quantities
that require placarding under DOT regulations. The final rule published
today does not change the existing motor carrier safety requirements or
impose new obligations on motor carriers. It merely sets forth an SFRM
the FHWA will use to evaluate motor carriers' compliance with the
standards and factors specified in 49 C.F.R. 385.5 and 385.7.
Furthermore, it gives carriers 45 days after notification of a proposed
conditional or unsatisfactory rating before the rating takes effect.
During that time, motor carriers will have an opportunity to correct
deficiencies in their compliance with Part 385 or to point out to the
agency any material factual issues in dispute. No such grace period is
available under the current interim final rule. Carriers rated less
than satisfactory under the SFRM will therefore have at least 45 days
after the effective date of this rule before the rating takes effect.
In view of these facts, and because the demands of public safety and a
specific statutory mandate (49 U.S.C. 5113) require the agency to
continue rating passenger and hazardous materials carriers without
interruption, the FHWA hereby finds good cause pursuant to 5 U.S.C.
553(d)(3) to make this rule effective on November 28, 1997.
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 final 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 introduces 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
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 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.
Considering all recordable accidents instead of only preventable
recordable accidents will 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
[[Page 60042]]
regulatory policies and procedures because there is 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 will 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: October 31, 1997.
Gloria Jeff,
Acting Administrator.
In consideration of the foregoing, the FHWA is amending 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
Sec. 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 Sec. 385.5 (a) through (k).
* * * * *
3. Section 385.9 is revised to read as follows:
Sec. 385.9 Determination of a safety rating.
(a) Following a compliance review of a motor carrier operation, the
FHWA, using the factors prescribed in Sec. 385.7 as computed under the
Safety Fitness Rating Methodology set forth in appendix B of this part,
shall determine whether the present operations of the motor carrier are
consistent with the safety fitness standard set forth in Sec. 385.5,
and assign a safety rating accordingly.
(b) Unless otherwise specifically provided in this part, a safety
rating will be issued to a motor carrier within 30 days following the
completion of a compliance review.
4. Section 385.11 is revised to read as follows:
Sec. 385.11 Notification of a safety rating.
(a) Except as provided elsewhere in this section, written
notification of the safety rating will be provided to a motor carrier
as soon as practicable after assignment of the rating, but not later
than 30 days after the review that produced the rating.
(b) Before a safety rating of unsatisfactory or conditional, is
assigned to any motor carrier, the FHWA will issue a notice of proposed
safety rating. The notice of proposed safety rating will list the
deficiencies discovered during the review of the motor carrier's
operations, for which corrective actions must be taken. A proposed
conditional safety rating (which is an improvement of an existing
unsatisfactory safety rating) becomes effective as soon as it issued
from Washington, D.C., and the carrier may also avail itself of relief
under the Sec. 385.15, Administrative Review and Sec. 385.17, Change to
safety rating based on corrective actions.
(c) A notice of a proposed safety rating of unsatisfactory will
indicate that, if the unsatisfactory rating becomes final, the motor
carrier will be subject to the provisions of Sec. 385.13, which
prohibit motor carriers rated unsatisfactory from transporting
hazardous materials or passengers, and other consequences that may
result from such rating.
(d) Except as provided in Sec. 385.17, a proposed safety rating
issued pursuant to paragraph (b) of this section will become the motor
carrier's final safety rating 45 days after the date the notice of
proposed safety rating is received by the motor carrier.
5. Section 385.13 is revised to read as follows:
Sec. 385.13 Unsatisfactory rated motor carriers--prohibition on
transportation of hazardous materials and passengers; ineligibility for
Federal contracts.
(a) A motor carrier rated unsatisfactory is prohibited from
operating a commercial motor vehicle to transport--
[[Page 60043]]
(1) Hazardous materials for which vehicle placarding is required
pursuant to part 172 of chapter 1 of this title; or
(2) More than 15 passengers, including the driver.
(b) A motor carrier subject to the provisions of paragraph (a) of
this section is ineligible to contract or subcontract with any Federal
agency for transportation of the property or passengers referred to in
paragraphs (a)(1) and (a)(2) of this section.
(c) Penalties. When a carrier subject to the prohibitions in
paragraph (a) of this section is known to transport the property or
passengers referred to therein, an order will be issued placing those
operations out of service. Any motor carrier that operates commercial
motor vehicles in violation of this section will be subject to the
penalty provisions listed in part 386 of this chapter.
6. Section 385.15 is revised to read as follows:
Sec. 385.15 Administrative review.
(a) Within the 45 day notice period provided in Sec. 385.11(d), or
within 45 days after denial of a request for a change in rating as
provided in Sec. 385.17(g), the motor carrier may petition the FHWA for
administrative review of a proposed or final safety rating by
submitting a written request to the Director, Office of Motor Carrier
Field Operations, 400 Seventh Street, SW., Washington DC 20590.
(b) The petition must state why the proposed safety rating is
believed to be in error and list all factual and procedural issues in
dispute. The petition may be accompanied by any information or
documents the motor carrier is relying upon as the basis for its
petition.
(c) The Director, Office of Motor Carrier Field Operations, may
request the petitioner to submit additional data and attend a
conference to discuss the safety rating. Failure to provide the
information requested or attend the conference may result in dismissal
of the petition.
(d) The petitioner shall be notified in writing of the decision on
administrative review. The notification will occur within 30 days after
receipt of a petition from a hazardous materials or passenger motor
carrier.
(e) If the decision on administrative review results in a final
rating of unsatisfactory for a hazardous materials or passenger motor
carrier, the decision shall be accompanied by an appropriate out-of-
service order.
(f) All other decisions on administrative review of ratings
constitute final agency action. Thereafter, improvement in the rating
may be obtained under Sec. 385.17 of this part.
7. Section 385.17 is revised to read as follows:
Sec. 385.17 Change to safety rating based on corrective actions.
(a) Within the 45-day period specified in Sec. 385.11(d), or at any
time after a rating has become final, a motor carrier may request a
change to a proposed or final safety rating based on evidence that
corrective actions have been taken and that its operations currently
meet the safety standard and factors specified in Sec. 385.9.
(b) A request for a change must be made, in writing, to the
Regional Director, Office of Motor Carriers, for the FHWA Region in
which the carrier maintains its principal place of business, and must
include a written description of corrective actions taken and other
documentation that may be relied upon as a basis for the requested
change to the proposed rating.
(c) The final determination on the request for change will be based
upon the documentation submitted and any additional investigation
deemed necessary.
(d) The filing of a request for change to a proposed rating under
this section does not stay the 45-day period established in
Sec. 385.11(d), after which a proposed safety rating becomes final. If
the motor carrier has submitted evidence that corrective actions have
been taken pursuant to this section and a final determination cannot be
made within the 45-day period, the period before the proposed safety
rating becomes effective may be extended for up to 10 days at the
discretion of the Regional Director.
(e) If it is determined that the motor carrier has taken the
corrective actions required and that its operations currently meet the
safety standard and factors specified in Sec. 385.9, the motor carrier
will be provided with written notification that the proposed rating
will not be assigned, or, if already assigned, rescinded.
(f) If it is determined that the motor carrier has not taken all
the corrective actions required or that its operations still fail to
meet the safety standards and factors specified in Sec. Sec. 385.5 and
385.7, the motor carrier shall be provided with written notification
that its request has been denied and that the proposed safety rating
will become final pursuant to Sec. 385.11(d), or that a safety rating
currently in effect will not be changed.
(g) Any motor carrier whose request for change is denied pursuant
to paragraph (f) of this section may petition for administrative review
pursuant to Sec. 385.15 within 45 days of the denial of the request for
rating change. If the proposed rating has become final, it shall remain
in effect during the period of any administrative review unless stayed
by the reviewing official.
8. Section 385.19 is revised to read as follows:
Sec. 385.19 Safety fitness information.
(a) Final ratings will be made available to other Federal and State
agencies in writing, telephonically or by remote computer access.
(b) The final safety rating assigned to a motor carrier will be
made available to the public upon request. Any person requesting the
assigned rating of a motor carrier shall provide the FHWA with the
motor carrier's name, principal office address, and, if known, the DOT
number or the ICC docket number, if any.
(c) Requests shall be addressed to the Office of Motor Carrier
Information Management and Analysis, HIA-1, Federal Highway
Administration, 400 Seventh Street, SW., Washington, D.C. 20590.
(d) Oral requests by telephone to (800) 832-5660 will be given an
oral response.
9. Part 385 is amended by revising appendix B to read as follows:
Appendix B TO Part 385--Explanation of Safety Rating Process
(a) Section 215 of the Motor Carrier Safety Act of 1984 (49
U.S.C. 31144) directed the Secretary of Transportation 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).
(b) 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.
(c) To meet the safety fitness standard, a motor carrier must
demonstrate to the FHWA that it has adequate safety management
controls in 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) and roadside inspections to
rate motor carriers.
(d) 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 to
49 CFR 385.5, Safety fitness
[[Page 60044]]
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.
I. Source of Data for Rating Methodology
(a) 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.
(b) 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, vehicle maintenance records, and other 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.
II. Converting CR Information Into a Safety Rating
(a) 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.
(b) Acute regulations are those identified as such where
noncompliance is so severe as 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 such knowledge or could not reasonably be expected to have such
knowledge, then a violation would not be cited.
(c) Critical regulations are those identified as such where
noncompliance relates to management and/or operational controls.
These are indicative of breakdowns 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.
(d) The list of the acute and critical regulations which are
used in determining safety ratings is included at the end of this
document.
(e) Noncompliance with acute regulations and patterns of non-
compliance 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 Safety
fitness standard in Sec. 385.5.
(f) The regulatory factors, evaluated on the basis of the
adequacy of the carrier's safety management controls, are (1) Parts
387 and 390; (2) Parts 382, 383 and 391; (3) Parts 392 and 395; (4)
Parts 393 and 396 when there are less than three vehicle inspections
in the last 12 months to evaluate; and (5) Parts 397, 171, 177 and
180.
(g) 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 a number of documents are reviewed, the number of
violations required to meet a pattern is equal to at least 10
percent of those examined.
(h) However, each pattern of noncompliance with a critical
regulation relative to Part 395, Hours of Service of Drivers, will
be assessed two points.
A. Vehicle Factor
(a) When a total of three or more inspections are 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 and 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
percent 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 a
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 percent, 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.
(b) 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, thus preventing them from
being placed OOS during roadside inspections. 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.
B. Accident Factor
(a) 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, as defined in 49 CFR 390.5, 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.
(b) Recordable accidents per million miles were computed for
each CR performed in Fiscal Years 1994,1995 and 1996. The national
average for all carriers rated was 0.747, and .839 for carriers
operating entirely within the 100 air mile radius.
(c) Experience has shown that urban carriers, those motor
carriers operating primarily within a radius of less than 100 air
miles (normally in urban areas) have a higher exposure to accident
situations because of their environment and normally have higher
accident rates.
(d) 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 occurred within the 12 months prior to the
CR. An urban carrier (a carrier operating entirely within a radius
of 100 air miles) with a recordable accident rate greater than 1.7
will receive an unsatisfactory rating for the accident factor. All
other carriers with a recordable accident rate greater than 1.5 will
receive an unsatisfactory factor rating. The rates are a result of
roughly doubling the national average accident rate for each type of
carrier rated in Fiscal Years 1994, 1995 and 1996.
(e) The FHWA will continue to consider preventability when a
motor carrier contests a rating by presenting compelling evidence
that the recordable rate is not a fair means of evaluating its
accident factor. Preventability will be determined according to the
following standard: ``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.''
[[Page 60045]]
C. Factor Ratings
(a) Parts of the FMCSRs and the HMRs having similar
characteristics are combined together into five regulatory areas
called ``factors.''
(b) The following table shows the five regulatory factors, parts
of the FMCSRs and HMRs associated with each factor, and the accident
factor. Factor Ratings are determined as follows:
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
``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
III. Safety Rating
A. Rating Table
(a) The ratings for the six factors are then entered into a
rating table which establishes the motor carrier's safety rating.
(b) 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.
0....................................... 2 or less................. CONDITIONAL.
1....................................... more than 2............... UNSATISFACTORY.
2 or more............................... 0 or more................. UNSATISFACTORY.
----------------------------------------------------------------------------------------------------------------
B. Proposed Safety Rating
(a) The proposed safety rating will appear on the CR. The
following appropriate information will appear after the last entry
on the CR, MCS-151, Part B.
``Your proposed safety rating is SATISFACTORY.''
Your proposed safety rating is CONDITIONAL.'' The proposed
rating will become the final rating 45 after you receive this
notice.
OR
``Your proposed safety rating is UNSATISFACTORY.'' The safety
rating will become the final safety rating 45 days after you receive
this notice.
(b) Proposed safety ratings of conditional or unsatisfactory
will list the deficiencies discovered during the CR for which
corrective actions must be taken.
(c) Proposed unsatisfactory safety ratings will indicate that,
if the unsatisfactory rating becomes final, the motor carrier will
be subject to the provision of Sec. 385.13, which prohibits motor
carriers rated unsatisfactory from transporting hazardous materials
requiring placarding or 15 passengers or more including the driver.
IV. Assignment of Final 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. A proposed conditional safety rating
(which is an improvement of an existing unsatisfactory rating)
becomes effective as soon as the official safety rating from
Washington, D.C. is issued, and the carrier may also avail itself of
relief under the Sec. 385.15, Administrative Review and Sec. 385.17,
Change to safety rating based on corrective actions.
V. Motor Carrier Rights to a Change in the Safety Rating
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. They are the procedural avenues a motor
carrier which believes its safety rating to be in error may
exercise, and the means to request another review after corrective
action has been taken.
VI. Conclusion
(a) The FHWA believes this ``safety fitness 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 (Sec. 385.9). This
methodology has the capability to incorporate regulatory changes as
they occur.
(b) Improved compliance with the regulations leads to an
improved rating, which in turn increases safety. This increased
safety is our regulatory goal.
VII. 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) Using a driver before the motor carrier has
received negative pre-employment controlled substance test results.
(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)
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
[[Page 60046]]
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 Sec. 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(i) 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)
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(c) 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. 180.415 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. 97-29380 Filed 11-5-97; 8:45 am]
BILLING CODE 4910-22-P