Safety Fitness Procedure; Safety Ratings

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. MC-94-22]

Safety Fitness Procedure; Safety Ratings

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice and request for comments.

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SUMMARY: In March and December 1993 the FHWA modified its Safety

Fitness Rating Methodology (SFRM) used to rate a motor carrier's

compliance with the Federal Motor Carrier Safety Regulations (FMCSRs),

applicable Hazardous Materials Regulations (HMRs), and to assess its

operational safety. These modifications incorporated more performance-

based information into the SFRM. Vehicle out-of-service (OOS) rates are

now used as a first indicator to evaluate a motor carrier's compliance

with the Inspection, Repair, and Maintenance regulations found in part

396 of the FMCSRs. A second modification gave more weight to violations

of the safety regulations which are acute or critical. These

modifications enable the SFRM to reflect more accurately the regulatory

scheme set forth in 49 CFR part 385 to determine the safety rating of

motor carriers.

Beginning October 1, 1994, violations of the safety regulations

which are acute or critical will be used to rate each of the five

regulatory factors when performing a compliance review (CR). On the

same date the FHWA will discontinue use of the safety review (SR).

Experience has demonstrated that the CR is a more objective tool for

measuring a motor carrier's compliance. Although the SR will no longer

be used, the education and technical assistance aspect of the SR will

continue to be an important part of the overall motor carrier safety

program.

This notice explains the 1993 SFRM changes as well as the changes

to be implemented on October 1, 1994. This notice also solicits

comments concerning the forthcoming rating methodology changes, and the

direction that future modifications should take.

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

ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-94-22,

room 4232, HCC-10, Office of Chief Counsel, Federal Highway

Administration, 400 Seventh Street, SW., Washington, DC 20590. All

comments received will be available for examination at the above

address from 8:30 a.m. to 3:30 p.m. e.t., Monday through Friday, except

Federal holidays. Those persons desiring notification of receipt of

comments must include a self-addressed, stamped postcard.

FOR FURTHER INFORMATION CONTACT: Mr. William C. Hill, Federal Programs

Division, Office of Motor Carrier Field Operations (202) 366-1795, or

Mr. Charles Medalen, Office of Chief Counsel, (202) 366-1354, Federal

Highway Administration, 400 Seventh Street, SW., Washington, DC 20590.

Office hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through

Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Information Regarding the Safety Rating Process

Section 215 of the Motor Carrier Safety Act of 1984 (49 U.S.C.

31144, formerly 49 U.S.C. App. 2512) directed the Secretary of

Transportation, in cooperation with the Interstate Commerce Commission

(ICC), to establish a procedure to determine the safety fitness of

owners and operators of commercial motor vehicles (CMVs) operating in

interstate commerce. The Secretary's responsibility was delegated to

the FHWA.

The FHWA promulgated a regulation entitled ``Safety Fitness

Procedures,'' 49 CFR part 385, which established a ``safety fitness

standard'' that a motor carrier must meet in order to obtain a

``Satisfactory'' safety rating.

To meet the ``safety fitness standard,'' a motor carrier must

demonstrate that it has adequate safety management controls in place

which function effectively to ensure acceptable compliance with the

applicable safety requirements. The rule also sets forth the factors

that will be considered in determining a motor carrier's safety

fitness.

The FHWA developed an SFRM which uses data from SRs or CRs, to

evaluate a motor carrier's safety fitness and to assign one of three

possible safety ratings (Satisfactory, Conditional or Unsatisfactory)

to carriers operating in interstate commerce. This process is based on

49 CFR 385.5, Safety fitness standard, and Sec. 385.7, Factors to be

considered in determining a safety rating. The process also identifies

motor carriers needing improvement in their compliance with the FMCSRs

and applicable HMRs. The safety rating process is used to focus the

FHWA's limited resources on examining the operations of these motor

carriers to promote compliance with applicable regulations, which

reduces the risk of highway accidents and hazardous materials

incidents. Motor carriers rated as ``Unsatisfactory,'' especially those

transporting passengers and hazardous materials, customarily receive a

higher priority in the FHWA's on-site compliance and enforcement

efforts. In addition, the Motor Carrier Act of 1990 (49 U.S.C. 5113,

formerly 49 U.S.C. App. 1814) prohibits all motor carriers which

receive ``Unsatisfactory'' safety ratings from the FHWA from operating

CMVs to transport placardable quantities of hazardous materials or more

than 15 passengers, including the driver. This prohibition becomes

effective 45 days after the motor carrier receives an

``Unsatisfactory'' safety rating and remains in effect until the

carrier is issued a ``Conditional'' or ``Satisfactory'' rating.

Gathering Information

The rating process used by the FHWA is built upon two operational

tools, the SR and the CR. Although the SR will be eliminated after

October 1, 1994, it is currently an integral part of the SFRM.

The SR is an assessment of ``unrated'' motor carriers conducted by

Federal and State safety specialists. The SR generally requires 4 to 6

hours to complete, depending upon the size of the motor carrier. The

safety specialist interviews management officials and inspects samples

of the records required to be maintained by the FMCSRs and applicable

HMRs at a motor carrier's principal place of business.

The SR document, which is completed during the on-site visit,

contains 70 questions. The SFRM assigns values to each of these

questions in the SR document depending on the carrier's compliance or

non-compliance with the subject matter of the question. The questions

are answered either ``yes'' or ``no'' based upon the safety

specialist's observations of the motor carrier's operations, records,

management controls, and the information provided by its

representatives.

The CR is a more in-depth examination of a motor carrier's

operations and is used: (1) To conduct a follow-up investigation on

motor carriers that were rated ``Unsatisfactory'' or ``Conditional'' as

a result of a previous SR or CR, or were the subjects of previous

enforcement actions, (2) to investigate complaints, or (3) to respond

to a request by a motor carrier to reevaluate its safety rating.

Documents such as those contained in driver qualification files,

records of duty status and vehicle maintenance records are thoroughly

examined for compliance with the FMCSRs and applicable HMRs. Violations

are recorded on the CR document. Performance-based information, when

available, is utilized to evaluate the carrier's compliance with the

FMCSRs' vehicle regulations. Recordable/preventable accident

information is collected and used by the FHWA in the rating process. It

consists of the motor carrier's accident history for the 365-day period

prior to the SR or CR. If the accidents meet the FHWA's recording

criteria provided in the definition of an accident in Sec. 390.5 of the

FMCSRs, and are determined by the safety specialist to have been

preventable (could have been avoided by driver/carrier action), they

are divided by vehicle miles travelled (VMT) to produce an accident

rate.

Transforming the Information into a Safety Rating

Upon completion of the CR, the same 70 questions used in the SR

document are answered by the safety specialist to initiate the safety

rating process. The safety specialists receive guidance and training on

how to complete this form. They identify areas of noncompliance with

regulations that are considered acute, where noncompliance is so severe

to require immediate corrective actions, or critical, where

noncompliance relates to management and/or operational controls.

Specific regulations are linked to specific questions. If noncompliance

with an acute regulation, as it relates to a specific question, is

discovered, the safety specialist marks that question ``No.'' Questions

that are linked to critical regulations are marked ``No'' only after a

pattern of noncompliance is discovered. Patterns are used to

demonstrate more than isolated instances of noncompliance. When large

numbers of documents are reviewed, the number of violations required to

establish a pattern is equal to at least 10 percent of those records

examined.

The FHWA has developed a computerized algorithm, which is an

integral part of the SFRM, for assessing the information obtained from

the SR or CR document and assigning a safety rating. Those requirements

of the FMCSRs and applicable HMRs that have similar characteristics are

combined into five regulatory areas called ``rating factors.'' The five

regulatory factors are: (1) Parts 387 and 390; (2) parts 383 and 391;

(3) parts 392 and 395; (4) parts 393 and 396; and (5) parts 397 and

177. A sixth factor is included in the process to address the accident

history of the motor carrier. Each of the six factors is equally

weighted, and a rating for each factor is determined by computing the

results of the responses to the applicable questions. The results for

each of the six factors are then entered into a rating table which

establishes the motor carrier's overall safety rating.

Review of the Safety Rating

Section 385.15 provides motor carriers that believe their safety

ratings are erroneous because of unresolved factual or procedural

disputes the opportunity to petition for a review of their ratings.

Section 385.17 provides motor carriers the right to request another

review after corrective action has been taken.

Changes to the SFRM in 1993

In March 1993, two SFRM changes were implemented which affected the

way motor carrier safety ratings were computed when a CR is performed.

The first involved evaluation of a motor carrier's compliance with the

vehicle factor (Parts 393 and 396). Prior to this change, the vehicle

factor was evaluated on the basis of the recordkeeping requirements in

Part 396 and on the number of Out-Of-Service (OOS) defects discovered

when vehicles were inspected during a CR. The change made the vehicle

factor entirely performance-based when a combination of three or more

vehicle inspections were either reported in the Motor Carrier

Management Information System (MCMIS) in the 24 months prior to the CR

or performed at the time of the review. The vehicle factor was rated

``Satisfactory'' if the vehicle OOS rate was less than 17 percent,

``Conditional'' if it fell between 17 and 33 percent, and

``Unsatisfactory'' if greater than 33 percent. More than 1.6 million

vehicles are inspected on the roadside each year by State and Federal

officials. The results of these inspections are maintained in the

MCMIS. The data base is now sufficiently comprehensive to make it a

reliable source of information on carrier compliance for a period of

several years. This information is central to the FHWA's rating of

motor carriers. It also enables motor carriers to gauge the success of

their maintenance program and ultimately to reduce OOS rates during

roadside inspections.

The second modification related to all the regulatory factors. When

a pattern of noncompliance with a critical regulation or a single

instance of noncompliance with an acute regulation resulted in an

enforcement action (i.e., a notice of claim for a civil penalty, or a

criminal proceeding), the rating for that factor was

``Unsatisfactory.'' Noncompliance with acute regulations and patterns

of noncompliance with critical regulations have been demonstrated

through data analysis to be linked to inadequate safety management

controls and higher than average rates of recordable/preventable

accidents.

In December 1993 these two changes were refined in the SFRM. The

December refinements were the result of experience following the

adoption of the March 1993, SFRM changes, which had placed greater

emphasis upon performance-oriented motor carrier evaluation than did

the previous SFRM. It was decided to place more emphasis upon the part

396 requirements to evaluate the vehicle factor because it had become

apparent that vehicle roadside inspections were not truly random and

that inspectors were targeting vehicles and drivers either because of

previous noncompliance or because the violations were evident to the

inspectors. Experience also indicated that a factor rating in which

noncompliance with an acute regulation resulted in an enforcement

action was more appropriately rated no higher than ``Conditional,'' as

a violation of an acute regulation by itself was not representative of

compliance with the entire factor.

With the first refinement, the vehicle factor is now rated on a

performance basis if a combination of three or more inspections have

been recorded in the MCMIS in the twelve months (rather than 24 months)

prior to the carrier review or performed at the time of the review.

Moreover, because OOS rates were higher than would otherwise be the

case because of the non-randomness of the roadside inspections, a new

two category system was adopted: OOS rates of 34 percent or higher

create an initial factor rating of ``Conditional,'' while those below

that figure create an initial factor rating of ``Satisfactory.'' The

carrier's compliance with the inspection, repair and maintenance

requirements (Part 396) is examined during each review. The results

could lower the initial ``Satisfactory'' factor rating to

``Conditional'', and the initial ``Conditional'' factor rating to

``Unsatisfactory'' if noncompliance with an acute regulation and/or a

pattern of noncompliance with a critical regulation is discovered. If

the examination of the part 396 requirements discloses no such problems

with the systems the motor carrier is required to maintain for

compliance, the vehicle factor remains ``Satisfactory'' and

``Conditional,'' respectively. The second refinement in December 1993

required that when an enforcement case is initiated based upon

noncompliance with an acute regulation, the pertinent regulatory factor

will not be rated higher than ``Conditional.'' If the enforcement case

is based upon noncompliance with two or more acute regulations within

the same factor, that factor will be rated ``Unsatisfactory.''

There was no change in the treatment of a pattern of noncompliance

with a critical regulation resulting in an enforcement action; the

pertinent factor rating remains ``Unsatisfactory.''

Additional Information on the Current SFRM

Anyone interested in obtaining a more comprehensive printed

explanation of the current Safety Rating process should contact the

Regional Director, Office of Motor Carriers (See 49 CFR 390.27 for the

appropriate address), or the Office of Motor Carrier Field Operations,

Room 3421, Attn: HFO-10, 400 7th Street SW., Washington, DC 20590. A

copy of that printed explanation has been placed in the docket for

public review.

The March and December 1993 changes to the SFRM were not published

in the Federal Register or codified in the FMCSRs because the SFRM

simply sets forth the FHWA's rules of procedure and practice for

implementing Part 385, Safety Fitness Procedures. The SFRM is not a

separate regulatory standard.

October 1, 1994, Changes to the SFRM

Analysis of the SFRM confirms the reasonableness of emphasizing

noncompliance with acute regulations or patterns of noncompliance with

critical regulations to measure a motor carrier's overall compliance

with the FMCSRs and applicable HMRs. The modifications direct the

attention of motor carriers to the regulations shown to have the

greatest impact upon safety improvement. They simplify the rating

process, since only noncompliance with acute regulations or patterns of

noncompliance with critical regulations will be used for evaluating the

regulatory factors. It should be noted that a ``Satisfactory'' rating

is only a passing grade and only full compliance with all of the safety

regulations will assure that motor carriers meet the provisions of part

385, Safety fitness standard.

Beginning October 1, 1994, a further modification will be initiated

to emphasize the importance of compliance with part 395. Studies have

shown that driver error is a significant factor in the majority of

accidents. A large component of driver error is fatigue or loss of

alertness. Part 395 regulations are an extremely important part of a

motor carrier's safety fitness rating.

Compliance with the regulatory factors, (1) Parts 387 and 390; (2)

parts 383 and 391; (3) parts 392 and 395; (4) parts 393 and 396, when

there are less than 3 vehicle inspections in the last 12 months to

evaluate; and (5) parts 397 and 177, will thereafter be evaluated as

follows: For each instance of noncompliance with an acute regulation or

each pattern of noncompliance with a critical regulation discovered

during a CR, one point will be assessed. However, each pattern of

noncompliance with a critical regulation relative to Part 395, Hours of

Service of Drivers, will be assessed two points. By increasing the

point value for patterns of noncompliance with critical regulations

relating to part 395, motor carriers with significant hours of service

problems will receive no higher than an overall ``Conditional'' safety

rating. The assignment of the points for the three ratings are a result

of an October 1993 work-group's analysis of data on noncompliance with

acute regulations and patterns of noncompliance with critical

regulations.

The FHWA regulatory factor ratings will be derived as follows:

Satisfactory--if the critical and/or acutes=0 points

Conditional--if the critical and/or acutes=1 point

Unsatisfactory--if the critical and/or acutes=2 points

When there are a combination of three or more inspections recorded

in the MCMIS in the twelve months prior to the carrier review or

performed at the time of the review, the Vehicle factor (parts 393 and

396) will be evaluated on the basis of OOS rates and noncompliance with

acute regulations and/or a pattern of noncompliance with a critical

regulation.

The accident factor (recordable/preventable accident rate) will be

modified to exclude the accident rates for all motor carriers that have

only one recordable/preventable accident in the twelve months prior to

the review. This change is being made to reflect the variability of

accident rates for small motor carriers from one year to the next.

The formula for assigning a safety rating is not being modified.

Each of the six factors will continue to be equally weighted, with the

results of each factor rating being entered into a rating table which

establishes the motor carrier's overall safety rating.

The FHWA is soliciting comments concerning the October 1, 1994,

rating methodology changes; the direction that should be taken when

future modifications to the SFRM are made; and suggestions on how to

get information to the industry on new regulations or changes, and FHWA

programs to encourage ``voluntary compliance.''

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

Issued on: September 7, 1994.

Rodney E. Slater,

Federal Highway Administrator.

[FR Doc. 94-22662 Filed 9-13-94; 8:45 am]

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