Safety Fitness Procedure; Safety Ratings

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 385

[FHWA Docket No. MC-94-22; FHWA-97-2252]

RIN 2125-AC 71

Safety Fitness Procedure; Safety Ratings

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: This document is in response to a decision of the U.S. Court

of Appeals, District of Columbia Circuit, entered on March 18, 1997. In

this rulemaking the FHWA is proposing to incorporate a modified Safety

Fitness Rating Methodology (SFRM), which would be used to measure the

safety fitness of motor carriers against the safety standard, as an

appendix to its Safety Fitness Procedures regulations. An interim final

rule published elsewhere in today's Federal Register incorporates the

current SFRM for an interim period to rate motor carriers that are

transporting hazardous materials in quantities for which vehicle

placarding is required, or transporting 15 or more passengers including

the driver.

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

ADDRESSES: Submit written, signed comments to the docket number that

appears in the heading of this document to the Docket Clerk, U.S. DOT

Dockets, Room PL-401, 400 Seventh Street, SW., Washington, D.C. 20590-

0001. All comments received will be available for examination at the

above address between 10 a.m. and 5 p.m., e.t., Monday through Friday,

except Federal holidays. Those desiring notification of receipt of

comments must include a self-addressed, stamped envelope or postcard.

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

Operations Division, Office of Motor Carrier Research and Standards,

(202) 366-4009, or Mr. Charles Medalen, Office of the Chief Counsel,

(202) 366-1354, Federal Highway Administration, 400 Seventh Street,

SW., Washington, D.C. 20590. Office hours are from 7:45 a.m. to 4:15

p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

The U.S. Court of Appeals for the District of Columbia Circuit

ruled that the FHWA's procedures for assigning safety ratings were

adopted contrary to law. MST Express and Truckers United for Safety v.

Department of Transportation and Federal Highway Administration, No.

96-1084, March 18,1997. The court ruled that the FHWA had failed to

carry out its statutory obligation to establish, by regulation, a means

of determining whether a motor carrier has complied with the safety

fitness requirements of the Motor Carrier Safety Act of 1984 (MCSA)

(codified at 49 U.S.C 31144). Because the carrier's safety rating was

determined based upon rules that were not promulgated pursuant to

notice and comment rulemaking, as 49 U.S.C. 31144(a) requires, the

petitioner's conditional safety rating was vacated and the matter

remanded to the FHWA ``for such further action as it may wish to take,

consistent with the decision.''

In this notice of proposed rulemaking (NPRM), the FHWA proposes to

modify the SFRM, incorporate it as Appendix B to Part 385, and use it

as the means for deciding whether motor carriers meet the safety

fitness requirements.

The FHWA has been using an SFRM, comprised of six rating factors,

since October 1, 1989, as the mechanism for determining how well motor

carriers are adhering to 49 CFR 385.5, Safety fitness standard. In

addition to making the detailed explanation available since August 16,

1991, the FHWA has sought comments from interested members of the

public in FHWA Docket Nos. MC-91-8 (56 FR 40801) and MC-94-22 (59 FR

47203).

In the first docket, the FHWA solicited public comment on an

interim final rule (56 FR 40801) (August 16, 1991) implementing that

provision of the MCSA of 1990, Pub. L. 101-500, Sec. 15(b)(1), 104

Stat. 1218, 49 U.S.C. 5113, prohibiting a motor carrier with an

unsatisfactory safety rating from operating a commercial motor vehicle

(CMVs) to transport: (1) hazardous materials in quantities for which

vehicle placarding is required, or (2) more than 15 passengers

including the driver. This prohibition becomes effective after 45 days

have elapsed following receipt of an unsatisfactory safety rating

issued by the FHWA. During the 45-day period, the motor carrier should

take such action as may be necessary to improve its safety rating to

conditional or satisfactory or be subject to the prohibition. Fourteen

comments were received in response to the 1991 interim final rule. Such

of those comments as provide relevant information to this NPRM are

discussed herein. The FHWA will also determine whether the 1991 interim

rule is to be made final after consideration of the comments received

in response to today's NPRM.

In the second docket, the FHWA published in the Federal Register on

September 14, 1994, a notice and request for comments (59 FR 47203)

explaining changes made to the SFRM in 1993, which was then being used

to evaluate a motor carrier's adherence to the Sec. 385.5 safety

fitness standard. Additional changes to the SFRM, which became

effective on October 1, 1994, were also explained. These changes

initiated the use of violations of the safety regulations designated as

``acute'' or ``critical'' to rate each of the five regulatory factors

evaluated when performing a compliance review (CR) at a carrier's place

of business.

The FHWA also solicited comments concerning: (1) changes made in

1994, (2) the direction that future modifications to the SFRM should

take, and (3) how best to disseminate information to the industry about

new regulations and the FHWA programs that encourage ``voluntary

compliance.''

The 17 comments received in response to changes to the rating

criteria are discussed in this notice to the extent they provide

relevant information to this NPRM. Comments that are duplicative of

those discussed under the prior docket discussion are not repeated.

In today's NPRM, the FHWA is proposing to incorporate as Appendix B

to Part 385 the SFRM in a form substantially similar to that which has

been used over the past 8 years and adopted by the interim final rule

published elsewhere in today's Federal Register. The SFRM proposed in

this NPRM has been modified, however, to change the accident factor.

The reasons for this proposed modification are as follows. The

preventable recordable accident criteria have been used by

[[Page 28827]]

FHWA since the mid-1980s. The FHWA has, however, received complaints

that the criteria are too subjective. During the CR, preventability is

evaluated based on the safety specialist's assessment. The FHWA

believes that if a driver, who exercises normal judgment and foresight

could have foreseen the possibility of the accident that in fact

occurred, and avoided it by taking steps within his/her control which

would not have risked causing another kind of mishap, the accident was

preventable. However, individuals will not always agree when the same

fact situations are evaluated.

We are proposing to use all recordable accidents in evaluating the

accident factor because we believe this is a more objective standard.

The data indicate that the vast majority of all accidents have been

determined to be preventable. For Fiscal Year 1995, the average

accident rate, derived from CRs performed during that time frame, was

0.812 for all carriers and 1.029 for carriers that operated entirely

within a 100 air mile radius.

We are proposing to double the average rate to determine when a

carrier is unsatisfactory in the accident factor. The FHWA believes

that it would be reasonable to rate unsatisfactory, for the accident

factor alone, any motor carrier with an accident rate that is twice the

average rate for all carriers (or for carriers operating entirely

within the 100 air mile radius, as the case may be), because the FHWA

believes that it is likely that a carrier with an accident rate

substantially above the norm for similarly situated carriers has

inadequate or improperly functioning safety management controls. See 49

CFR Sec. 385.7. Nevertheless, the recordable accident rate will be used

to rate Factor 6, Accident, for a carrier only when the carrier has had

two or more recordable accidents within the 12 months prior to the CR.

The FHWA believes that a single accident within that time frame could

be due to any number of reasons not reflecting on the adequacy of the

carrier's safety management controls. Additionally, the FHWA proposes

no longer to assign satisfactory or conditional ratings for this

factor; only unsatisfactory ratings will be assigned.

Discussion of Comments

Purpose of Safety Ratings

The Interstate Truckload Carriers Conference (ITCC) stated that the

FHWA's safety rating process was never intended to be used as an

administrative mechanism for imposing severe sanctions upon motor

carriers. The safety rating system, according to the ITCC, was

developed as an educational and management tool so the FHWA could focus

its limited resources on the operations of motor carriers with

problems. The commenter claimed that a motor carrier could receive a

rating as a result of factors or considerations which were never part

of a rulemaking proceeding and thus possibly be a violation of the

Administrative Procedure Act (APA).

The American Trucking Associations (ATA) had similar concerns that

because the safety criteria had not gone through public notice and

comment rulemaking, it would be a possible violation of the APA and

unfair for the FHWA to use those criteria for enforcement purposes. The

ATA wanted the FHWA to provide the formula that establishes the

unsatisfactory safety rating. It also stated that the safety rating

process should be developed through notice and comment rulemaking.

Comments concerning the safety review (SR) are no longer relevant since

that review process was discontinued on September 30, 1994.

The FHWA adopted a final rule in 1988, after notice and opportunity

for comment, that implemented the requirements of section 215 of the

MCSA of 1984 and established a procedure to determine the safety

fitness of motor carriers. The FHWA believed that the SFRM that it used

to supplement the procedures set forth in its regulations did not

amount to substantive requirements necessitating notice and comment

rulemaking. In its interim final rule adopted in 1991, the FHWA advised

motor carriers that they could obtain copies of the safety rating

process by contacting the agency. See 56 FR at 40803. This offer to

provide copies of the SFRM to carriers was reiterated in 1994. See 59

FR at 47205.

In light of the court's decision in MST Express, the FHWA is now

soliciting public comment on its proposal to add the SFRM, modified as

described in this NPRM, to Part 385. The FHWA notes that the SFRM

proposed today has been modified, in part, in light of public comments

received in response to the 1991 interim final rule and the 1994

request for public comment.

Accident Factor

The ATA and the American Bus Association (ABA) were concerned about

the inclusion of the reportable/preventable (subsequently changed to

recordable/preventable) accident frequency in the rating process, as

there are no regulations specifying acceptable frequencies for a

satisfactory rating. Also, they believe that in borderline cases

preventability is a judgment call that may be influenced by short-term

objectives. The ABA stated that the FHWA has not defined a preventable

accident, and it would like the criteria for preventability ``spelled

out.'' The ABA also suggested that the FHWA could consider all

reportable (now recordable) accidents in its safety rating process,

which would eliminate subjective evaluations of whether particular

accidents were preventable.

In response to these comments, the FHWA is proposing to adopt a

recordable accident rate for the accident factor in the SFRM as

discussed above.

The recordable accident rate will be used to rate Factor 6,

Accident, only when two or more recordable accidents occurred within

the 12 months prior to the initiation of the CR. Urban carriers (a

carrier operating entirely within the 100 air mile radius) with a

recordable accident rate greater than 2.1 will receive an

unsatisfactory rating for the accident factor. All other carriers with

a recordable accident rate greater than 1.6 would receive an

unsatisfactory factor rating.

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

The ATA noted that the Sec. 385.3 definitions of conditional and

unsatisfactory should be changed to reflect Sec. 385.5 (a)-(k), and not

(h), as published in the August 16, 1991, Federal Register. That change

is proposed in this notice.

Objectivity of Ratings

The Chemical Waste Transportation Institute (CWTI) supported the

FHWA's efforts to develop a computerized rating formula, and wanted the

subjectivity minimized as much as possible. It also suggested that the

FHWA describe what steps are being taken to minimize human error in the

safety rating process.

The FHWA believes that having modified the SFRM to rate on the

basis of actual violations of acute regulations and patterns of

violations of critical regulations, as well as performance proposed to

be measured by recordable accidents and vehicle out-of-service (OOS)

rates from roadside vehicle/driver inspections, the safety rating

process has been made more objective.

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

General Electric recommended having the ``critical'' and ``acute''

regulations made available to the public and the definitions of the

terms ``critical'' and ``acute'' defined in part 385. It also

recommended that the definitions of conditional and unsatisfactory be

revised to make a clearer distinction

[[Page 28828]]

between these two ratings. The ABA stated that ``the definitions of

critical and acute violations are too vague to allow a reasonable

objective judgment.'' The ``acute'' and ``critical'' regulations and

the definitions of the terms are being published in the proposed

Appendix B to 49 CFR 385.

Algorithm

Blakely & Associates wanted a computerized algorithm with a formula

table so that carriers can determine ratings themselves. It also

suggested that the FHWA provide to the carrier the rating at the

conclusion of the CR. The SFRM contains explanations of the factor

ratings and the Motor Carrier Safety Rating Table, which is the formula

for determining a safety rating. The FHWA has also modified its

procedures to provide motor carriers with an anticipated rating at the

conclusion of the CR.

Elimination of the SR

Hanson Trucking and the ITCC believe that the SR should not have

been eliminated as ``it takes the focus of the audit from realistic

safety concerns and places the focus on inaccuracies in paperwork.''

Hanson Trucking did not believe that noncompliance in the areas of

false entries and improper form and manner will lead to increased

accident frequency and severity. The ITCC believed that the 70-question

format allowed carriers to police their operations and determine the

quality of their safety compliance in advance of a CR by the FHWA. It

stated that the first concern of an on-site audit should be the

accident history of the motor carrier. Further, the ITCC believes that

if a high accident frequency is in evidence, a CR should then be

conducted in an attempt to educate the carrier in accident

preventability. According to the ITCC, the lack of significant accident

data (no accidents) should indicate that the motor carrier has an

adequate safety program in place. The end goal, the ITCC stated, should

be: no accident problems equals no CR or enforcement action.

The FHWA discontinued the SR since the CR is a more objective means

to assess a motor carrier's adherence to the Sec. 385.5, safety fitness

standard. To the extent a carrier needs to know how far into

noncompliance it can slip without risking a bad rating, the carrier

will now be able to assess its safety compliance by conducting a self-

review to determine if it has violations of ``acute'' regulations or

patterns of violations of ``critical'' regulations.

Vehicle Factor

In factor 4 (Vehicle), the California Highway Patrol (CHP) believes

the former system of a conditional threshold at 17 percent vehicle OOS

rate for the vehicle factor was more appropriate than the current 34

percent OOS rate for conditional, and the Advocates for Highway and

Auto Safety (Advocates) generally agreed with this position. The CWTI

requested the FHWA to disclose its rationale for 34 percent OOS rate

for a conditional factor 4 rating and for selecting 10 percent for the

pattern of violations when evaluating compliance with ``critical''

regulations. The NPTC stated that the original 17 percent OOS rate

should be the threshold for assigning a conditional factor rating, and

then random vehicle inspections should be performed at the time of the

CR. If there is total compliance with the part 396 requirements, the

factor rating should be upgraded.

The ATA and several carriers were concerned that vehicles are

sometimes inspected, no defects are discovered and the vehicles are

then allowed to proceed without written inspection reports. Because of

this, they contend the FHWA should re-evaluate the use of OOS

percentages as a major component of factor 4 (Vehicle) rating, and

place more importance on the motor carrier's compliance with part 396.

Some carriers contended that for the OOS rate to be an accurate

representation of a motor carrier's compliance with the regulations, it

must be adjusted to the carrier's size.

The FHWA considered the comments concerning the method of

evaluating compliance with the Vehicle Factor. The FHWA believes that

the current method is appropriate and will not propose any changes at

this time. Our goal is to utilize ``performance-based information'' to

rate motor carriers whenever possible. Vehicle OOS rates are,

therefore, used as a first indicator to evaluate factor 4-(Vehicle). A

minimum of three or more inspections would be required to use vehicle

OOS rates as a first indicator. The three inspections must have

occurred in the twelve months prior to the CR, or be a combination of

inspections performed at the motor carrier's facility at the time of

the CR.

If it appears during the CR that the motor carrier's maintenance

has either improved or deteriorated since the inspections in the Motor

Carrier Management Information System, it is appropriate for the

individual conducting the CR to perform inspections at the motor

carrier's facility if vehicles are available (vehicles ready to be

dispatched or vehicles that just came off the road). Inspections may

also be performed at the motor carrier's facility at the time of the

CR, if there are fewer than three inspections on the carrier profile

for the prior 12 months.

The reason for using a 34 percent or greater OOS rate for the

conditional first indicator is as follows: (1) The national OOS rate

has been in the low thirties for several years; (2) many of the

roadside inspections are targeted at visibly defective vehicles; (3)

some vehicles receive a cursory inspection and if there are no apparent

defects, the vehicles are allowed to proceed without an inspection

report being generated; and (4) using a minimum of three or more

vehicle inspections, one OOS vehicle should not be able to impact the

factor rating. The second indicator is the motor carrier's compliance

with part 396, inspection, repair, and maintenance requirements. The

number of records to be reviewed is derived from the International

Standard of sampling procedures. If a violation of a part 396 acute

regulation, or a pattern of violations of a critical regulation is

discovered, a first indicator factor rating of conditional will be

lowered to unsatisfactory, and a satisfactory factor rating to

conditional, respectively.

Using two indicators to evaluate this factor is a reasonable

approach. The vehicle OOS rates are either confirmed, with the first

indicator rating remaining the same, or if significant noncompliance

with part 396 is discovered, the factor rating is lowered to

conditional or unsatisfactory, respectively. All of the defects that

have been identified as OOS violations have the same weight, which is

an additional reason for the OOS rate being set at 34 percent for

conditional as the first indicator in the factor rating.

Selection of Records for Review

The ATA and several carriers stated that the safety rating process

is not based upon a random sampling of the motor carrier's records. The

FHWA has given a great deal of consideration to the issue of selecting

carriers' records for review. The Sec. 385.5 safety fitness standard

was developed to measure the effectiveness of a motor carriers' safety

management controls. The CR identifies and documents areas where a

motor carrier's safety management controls have failed or are

ineffective. The FHWA focuses its review on drivers and vehicles that

were involved in accidents, those drivers who incurred OOS violations

during roadside inspections, or those drivers or vehicles for which

violations are more likely to be found (e.g. those drivers driving the

[[Page 28829]]

most miles). The drivers and vehicles reviewed using the ``focused

sample'' are the same ones carrier officials should be focusing their

efforts upon. The minimum number of records to be reviewed is derived

from the International Standard of sampling procedures, which is based

upon the number of drivers or vehicles that the motor carrier operates.

When the number of records from this focused sample has been exhausted

and there are fewer records than the sampling guidelines specify,

random sampling is used to meet the minimum number required to be

reviewed. Classifying certain regulations as ``acute'' or ``critical''

assists motor carriers in their compliance efforts as they can

concentrate their initial efforts on complying with these regulations.

It should be noted, however, that only full compliance with all of the

safety regulations will ensure that motor carriers comply with the

provisions of the Sec. 385.5, safety fitness standard.

``Acute'' regulations are ones where violations should not occur

for a motor carrier with effective safety management controls. An

example of an ``acute'' regulation is Sec. 382.211, using a driver who

has refused to submit to an alcohol or controlled substances test

required under part 382. A motor carrier which commits this violation

is one that instructed the driver to undergo testing, and the driver

refused to be tested. There is no reasonable excuse for a carrier to

use the driver after that driver's refusal to be tested.

A pattern of noncompliance is required before a rating factor is

impacted by violations of ``critical'' regulations because even a motor

carrier with effective safety management controls will, in all

likelihood, violate some of the ``critical'' regulations. An example of

a ``critical'' regulation is Sec. 395.3(a)(1), requiring or permitting

driver to drive more than 10 hours. By identifying this regulation as

``critical,'' the FHWA has ensured that violations will not impact

factor 3 (Hours of Service) unless they constitute a pattern. A pattern

is defined as a number of violations (more than one) constituting 10

percent or more of the occasions where like violations could have

occurred. Thus, when evaluating compliance with a ``critical''

regulation, the motor carrier's safety management controls usually are

judged to be effective if the number of discovered violations is under

10 percent.

The FHWA believes that motor carriers with effective safety

management controls are able to achieve a level of compliance with

``critical'' regulations before they reach a pattern of violations. For

rating purposes, all violations are considered, and effective safety

management oversight should result in a violation rate of less than 10

percent of the records or occasions reviewed.

Opportunity to Challenge a Rating

Several commenters wanted the procedures changed to allow a motor

carrier 30 days to challenge an anticipated safety rating where there

are factual issues in dispute.

The FHWA believes that providing a motor carrier the anticipated

rating at the conclusion of the CR gives the carrier adequate notice

that a rating of conditional or unsatisfactory will become effective 30

days from that date. Motor carriers receiving such a notice can

immediately: (1) Take corrective action on the discovered violations,

which will enable them to request a reevaluation based upon corrective

action taken (Sec. 385.17), and/or (2) petition the Director, Office of

Motor Carrier Field Operations, if there are factual or procedural

issues in dispute (Sec. 385.15). Either option may be utilized before

the carrier receives a final safety rating.

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

Regulations

The ATA stated that assessing one point for a violation of an

`acute' regulation discriminates against the large motor carrier since

more records are reviewed. Thus, it contends, there is a greater chance

of one violation being discovered. The ATA further stated that

violations of ``acute'' regulations should be evaluated on a percentage

basis analogous to the 10% threshold for ``critical'' regulations.

Rocor International wanted the percentage of violations of an ``acute''

regulation to be set at five percent of the records examined before one

point is assessed. It stated that this would be fairer to the larger

motor carrier where the probability of discovering a violation of one

``acute'' regulation increases directly with the number of records

examined. The NPTC commented ``Automatically assigning a conditional

rating for a single instance of noncompliance with an ``acute''

regulation may not be justified and fair. Just as there are many

factors that determine the safety fitness of a motor carrier--vehicle

condition, driver condition, over-the-road performance--when one part

of one of these factors is out of compliance, it does not necessarily

mean the motor carrier is unsafe.''

Acute regulations have been identified as regulations where

noncompliance is so severe (and avoidable by the attentive motor

carrier) that its occurrence is itself demonstrable of the absence of

effective safety management controls. It is reasonable to demand zero

tolerance for violations of these regulations. Thus, regardless of the

number of motor carrier records checked, there should not be any

instances of noncompliance with these identified ``acute'' regulations.

If a motor carrier has violated an acute regulation, one instance of

noncompliance will cause the factor rating to be conditional, but will

not, in and of itself, cause the motor carrier to have a less than

satisfactory safety rating. A motor carrier with as many as two factor

ratings of conditional will still be rated as satisfactory. The FHWA

believes that this is adequate protection for a motor carrier, of any

size, that violates an acute regulation.

The CHP and the Advocates agreed with two points being assessed for

a pattern of non-compliance with part 395 critical regulations.

On the other hand, the ATA and several other commenters believed

that there is no justification for doubling the point value for hours

of service violations, and that the FHWA has no evidence to show that

fatigue or lack of alertness related accidents are tied to hours of

service violations. Schafer Trucking wanted factor 3 (Hours of Service)

changed from two points to one point for a pattern of noncompliance

with a critical regulation unless the CR reveals the absence of an

effective hours of service compliance program as indicated by either:

(i) A recordable/preventable accident rate of more than 0.45 per

million miles, or (ii) the failure of the carrier to have in place an

hours of service compliance program enforced by sanctions which include

driver suspensions and/or terminations for hours of service

violations.''

The FHWA believes that there are data to draw the conclusion that

hours of service violations are related to fatigue. Studies have shown

that driver error is a significant factor in the majority of accidents.

The FHWA is continuing its major research efforts to better understand

fatigue. There are no ``acute'' regulations in part 395 (Hours of

Service). Thus, to have a rating of less than satisfactory in factor 3,

a motor carrier would need a pattern of noncompliance with a

``critical'' regulation. When reviewing driver records of duty status

(RODS), it is very rare that only several records are reviewed as a

driver would typically generate 30 RODS in a month. The FHWA believes

that motor carriers with effective safety management controls

[[Page 28830]]

will have less than a 10 percent rate of noncompliance with any of the

part 395 critical regulations.

Rating Factors

The ITCC stated that the assignment of equal weights for the six

rating factors seems inconsistent with the underlying purpose of giving

more weight to violations of regulations that are acute or critical. It

did not think that all factors should be weighted equally. The ITCC

also stated that the overall factor rating is the correct area in which

to place greater emphasis upon compliance with violations of the hours

of service regulations.

The FHWA's SFRM, developed in 1988-89, combines parts of the FMCSRs

and HMRs having similar characteristics into five regulatory areas

called ``rating factors.'' A sixth factor is included to address the

accident history of the motor carrier. Each of the factors is rated

satisfactory, conditional or unsatisfactory. Each of the six factors is

weighted equally in the safety rating methodology. Giving each of the

six factors equal weight is an attempt to balance the safety

significance of the regulations, except that the FHWA believes it is

appropriate to increase the point value for patterns of noncompliance

with ``critical'' regulations relating to Part 395. Otherwise, the FHWA

intends to retain the equal weight of the six factor ratings.

Regarding some comments suggesting more or less relationship

between enforcement and rating factors, the FHWA believes that

separating enforcement actions from safety ratings is appropriate. Both

are tools that are used to induce motor carriers to improve their

compliance with regulatory requirements. There will be instances where

a motor carrier has an enforcement action pending against it, and

appropriately has a satisfactory safety rating. An example of this is

where one terminal has a 15 percent violation rate for compliance with

Sec. 395.3 (a)(1), requiring or permitting driver to drive more than 10

hours. The motor carrier's overall violation rate may be seven percent

for compliance with Sec. 395.3(a)(1), which is satisfactory; however,

an enforcement action may be initiated against the carrier for its

terminal with the 15 percent violation rate. The FHWA believes this is

appropriate as the carrier's overall compliance is satisfactory yet it

has a significant noncompliance problem at one terminal with a 15

percent violation rate for noncompliance with Sec. 395.3(a)(1).

Future Direction

Today's NPRM is necessary to meet the FHWA's obligation under 49

U.S.C. Sec. 31144, as interpreted by the court in MST v. DOT, to

prescribe regulations establishing a procedure to decide on the safety

fitness of owners and operators of commercial motor vehicles, which

shall include--

(A) specific initial and continuing requirements to be met by the

owners, operators, and persons to prove safety fitness;

(B) a means of deciding whether the owners, operators, and persons

meet the safety fitness requirements of clause (A) of this paragraph;

and

(C) specific time deadlines for action by the Secretary in making

fitness determinations.

The FHWA believes incorporation of the SFRM and the other

amendments to Part 385 proposed herein will meet that obligation. It is

now soliciting further comments on the SFRM as an appendix to Part 385

for use in determining a motor carrier's safety fitness, the proposed

change to the accident factor, as well as on the other minor changes

proposed to be made to Part 385 itself.

The FHWA views this proposed action as a short-term approach. For

the long term, the FHWA is moving toward a more performance-based means

of determining when it is that carriers are not fit to conduct

commercial motor vehicle operations safely in interstate commerce.

Under legislative direction in the Intermodal Surface

Transportation and Efficiency Act of 1991, the FHWA has been conducting

pilots in five States to determine the feasibility of relating safety

performance to vehicle registrations. This has led to the development

of a system of data collection, called Safestat, which incorporates all

the safety information known about motor carriers and produces a

relative ranking of each carrier against all others similarly situated.

Within the next year or two, the FHWA believes the system will have

reached the point where it can be successfully employed to identify the

worst performing carriers. The system is presently used to identify

problem carriers and prioritize them for CRs.

Several sections in part 385 are proposed to be amended to correct

previous technical errors. The definition of ``Safety review'' in

section 385.3 would be removed since the Safety Review was discontinued

as of October 1, 1994. The definition of Conditional safety rating in

section 385.3 would be revised to ``ensure compliance with the safety

fitness standard that could result in occurrences listed in

Sec. 385.5(a) through (k).'' The definition of Unsatisfactory safety

rating would be revised to ``ensure compliance with the safety fitness

standard which has resulted in occurrences listed in Sec. 385.5(a)

through (k). Section 385.9 would be revised to include a subsection (b)

to meet the 49 U.S.C Sec. 31144(a)(C) requirement that there be

specific time deadlines for action by the Secretary in making fitness

decisions. Section 385.17 would be revised to ``conditionally suspend

the prohibition of operating with the unsatisfactory safety rating for

an additional period of up to 10 days.'' The current Appendix to Part

385 is changed to Appendix A in the interim final rule published

elsewhere in today's Federal Register. The revised Safety Rating

Process is added as Appendix B.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this action is not a significant

regulatory action within the meaning of Executive Order 12866. No

serious inconsistency or interference with another agency's actions or

plans is likely to result, and it is unlikely that this regulatory

action will have an annual effect on the economy of $100 million or

more. This Notice of proposed rulemaking rule is administrative in

nature in that it neither imposes new requirements upon the motor

carrier industry nor alters the August 16, 1991, interim final rule

implementing the provisions of 49 U.S.C. 5113. The FHWA does not

anticipate any new economic impacts as a result of this rulemaking.

This rule would not impose any costs on motor carriers in addition to

those assessed in the Regulatory Evaluation and Regulatory Flexibility

Analysis prepared in support of the 1988 final rule. (The 1991 interim

final amended the 1988 rule in ways that the FHWA believes had minimal

economic impact on motor carriers.)

The existing rating factors are used to evaluate the degree to

which the motor carrier complies with the regulations and add no costs

because the carrier is already required to comply. Compliance with

regulations, however, is only a surrogate for actual safety

performance. The addition of the accident factor introduced a direct

measure of performance into the equation. In 1988, this factor was not

considered as having a cost consequence because the effect of a

negative rating resulting from substantially higher accidents than the

[[Page 28831]]

norm would be virtually identical to the impact on the carrier's

business that would flow from public knowledge of its poor safety

performance.

The impact resulting from a negative rating generally relates to

knowledge of the rating by a shipper or insurer. If those same entities

know of the unusually high accident rate, the FHWA believes the

consequences would or should be approximately the same.

The instant proposal to consider all recordable accident instead of

only preventable recordable accidents would have the same sort of

impact. Nevertheless, the FHWA believes that this is a significant

regulatory action within the meaning of the Department of

Transportation's regulatory policies and procedures because it expects

that there will be significant public interest in this action.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-

612), the FHWA has evaluated the effects of this rule on small entities

and has determined that it would not have a significant economic impact

on a substantial number of small entities. The motor carriers

economically impacted by this rulemaking will be those who are rated as

unsatisfactory, and fail to take appropriate actions to have their

rating upgraded. In the past, relatively few small motor carriers had

been affected by the statutory consequences of an unsatisfactory, and

there is no reason to believe that those impacts will increase in any

way by this action.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been determined

that this rulemaking does not have sufficient Federalism implications

to warrant the preparation of a Federalism assessment. These safety

requirements do not directly preempt any State law or regulation, and

no additional costs or burdens would be imposed on the States as a

result of this action. Furthermore, the State's ability to discharge

traditional State governmental functions would not be affected by this

rulemaking.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217, Motor

Carrier Safety. The regulations implementing Executive Order 12372

regarding intergovernmental consultation on Federal programs and

activities do not apply to this program.

Paperwork Reduction Act

This action does not contain a collection of information

requirement for the purposes of the Paperwork Reduction Act of 1995, 44

U.S.C. 3501-3520.

National Environmental Policy Act

The agency has analyzed this rulemaking for the purpose of the

National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has

determined that this action would not have any effect on the quality of

the environment.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN contained in the heading of

this document can be used to cross reference this action with the

Unified Agenda.

List of Subjects in 49 CFR Part 385

Highway safety, Highways and roads, Motor carriers, Motor vehicle

safety, and Safety fitness procedures.

Issued on: May 21, 1997.

Jane F. Garvey,

Acting Federal Highway Administrator.

In consideration of the foregoing, the FHWA proposes to amend title

49, Code of Federal Regulations, Chapter III, Part 385 as set forth

below:

PART 385--SAFETY FITNESS PROCEDURES

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

follows:

Authority: 49 U.S.C. 104, 504, 521(b)(5)(A), 5113, 31136, 31144,

and 31502; 49 CFR 1.48.

2. In Sec. 385.3, under the definition ``Reviews'', remove and

reserve paragraph ``(2) Safety review''; and under the definition

``Safety ratings'', revise paragraphs ``(2) Conditional safety rating''

and ``(3) Unsatisfactory safety rating'' to read as follows:

Sec. 385.3 Definitions.

* * * * *

Reviews. * * *

(1) * * *

(2) [Reserved]

(3) * * *

Safety ratings: (1) * * *

(2) Conditional safety rating means a motor carrier does not have

adequate safety management controls in place to ensure compliance with

the safety fitness standard that could result in occurrences listed in

Secs. 385.5 (a) through (k).

(3) Unsatisfactory safety rating means a motor carrier does not

have adequate safety management controls in place to ensure compliance

with the safety fitness standard which has resulted in occurrences

listed in Secs. 385.5 (a) through (k).

* * * * *

3. Section 385.9 is amended by designating the current undesignated

text as paragraph (a), and by adding paragraph (b) to read as follows:

Sec. 385.9 Determination of a safety rating.

(a) * * *

(b) Unless otherwise specifically provided in this chapter, a

safety rating will be issued to a motor carrier within 30 days

following the completion of a compliance review.

4. Section 385.17 is amended by revising paragraph (c) to read as

follows:

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

taken.

* * * * *

(c) In cases where the FHWA is unable to make a determination

within the 45-day period established in Sec. 385.13 and the motor

carrier has submitted evidence that corrective actions have been taken

pursuant to paragraph (a) of this section, and has cooperated in any

investigation, the FHWA may conditionally suspend the prohibition of

operating with the unsatisfactory safety rating for an additional

period of up to 10 days.

5. Part 385 is amended by designating the existing appendix as

appendix A, and by adding appendix B to read as follows:

Appendix B To Part 385--Safety Rating Process

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

31144) directed the Secretary of Transportation, in cooperation with

the Interstate Commerce Commission, to establish a procedure to

determine the safety fitness of owners and operators of commercial

motor vehicles operating in interstate or foreign commerce. The

Secretary, in turn, delegated this responsibility to the Federal

Highway Administration (FHWA).

As directed, FHWA promulgated a safety fitness regulation,

entitled ``Safety Fitness Procedures'', which established a

procedure to determine the safety fitness of motor carriers through

the assignment of safety ratings and established a ``safety fitness

standard'' which a motor carrier must meet to obtain a satisfactory

safety rating.

To meet the safety fitness standard, a motor carrier must

demonstrate to FHWA that it has adequate safety management controls

in

[[Page 28832]]

place which function effectively to ensure acceptable compliance

with the applicable safety requirements. A ``safety fitness rating

methodology'' (SFRM) was developed by the FHWA, which uses data from

compliance reviews (CRs) to rate motor carriers.

The safety rating process developed by FHWA's Office of Motor

Carriers is used to:

1. Evaluate safety fitness and assign one of three safety

ratings (satisfactory, conditional or unsatisfactory) to motor

carriers operating in interstate commerce. This process conforms

with 49 CFR 385.5--Safety fitness standard and Sec. 385.7--Factors

to be considered in determining a safety rating.

2. Identify motor carriers needing improvement in their

compliance with the Federal Motor Carrier Safety Regulations

(FMCSRs) and applicable Hazardous Material Regulations (HMRs). These

are carriers rated unsatisfactory or conditional.

Source of Data for Rating Methodology

The FHWA's rating process is built upon the operational tool

known as the CR. This tool was developed to assist Federal and State

safety specialists in gathering pertinent motor carrier compliance

and accident information.

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

operations and is used (1) to rate unrated motor carriers, (2) to

conduct a follow-up investigation on motor carriers rated

unsatisfactory or conditional as a result of a previous review, (3)

to investigate complaints, or (4) in response to a request by a

motor carrier to reevaluate its safety rating. Documents such as

those contained in driver qualification files, records of duty

status and vehicle maintenance records are thoroughly examined for

compliance with the FMCSRs and HMRs. Violations are cited on the CR

document. Performance based information, when available, is utilized

to evaluate the carrier's compliance with the vehicle regulations.

Recordable accident information is also collected.

Converting CR Information Into a Safety Rating

The FHWA gathers information through an in-depth examination of

the motor carrier's compliance with identified ``acute'' or

``critical'' regulations of the FMCSRs and HMRs.

Acute are those identified regulations, where noncompliance is

so severe to require immediate corrective actions by a motor carrier

regardless of the overall safety posture of the motor carrier. An

example of an acute regulation is Sec. 383.37(b)--Allowing,

requiring, permitting, or authorizing an employee with more than one

Commercial Driver's License (CDL) to operate a commercial motor

vehicle. Noncompliance with Sec. 383.37(b) is usually discovered

when the motor carrier's driver qualification file reflects that the

motor carrier had knowledge of a driver with more than one CDL, and

still permitted the driver to operate a commercial motor vehicle. If

the motor carrier did not have knowledge or could not reasonably be

expected to have knowledge, then a violation would not be cited.

Critical are those identified regulations, where noncompliance

relates to management and/or operational controls. Noncompliance

with these regulations is indicative of a breakdown in a carrier's

management controls. An example of a critical regulation is

Sec. 395.3(a)(1)--Requiring or permitting a driver to drive more

than 10 hours.

The list of the acute and critical regulations which are used in

determining safety ratings is included at the end of this document.

Noncompliance with acute regulations and patterns of

noncompliance with critical regulations are quantitatively linked to

inadequate safety management controls and usually higher than

average accident rates. The FHWA has used noncompliance with acute

regulations and patterns of noncompliance with critical regulations

since 1989 to determine motor carriers' adherence to the

Sec. 385.5--Safety fitness standard. Compliance with regulatory

factors (1) Parts 387, & 390, (2) Parts 382, 383 & 391, (3) Parts

392 & 395, (4) Parts 393 & 396, when there are less than three

vehicle inspections in the last 12 months to evaluate, and (5) Parts

397, 171, 177 & 180, will be evaluated as follows:

For each instance of noncompliance with an acute regulation or

each pattern of noncompliance with a critical regulation during the

CR, one point will be assessed. A pattern is more than one

violation. When large numbers of documents are reviewed the number

of violations required to meet a pattern is equal to at least 10

percent of those examined.

However, each pattern of noncompliance with a critical

regulation relative to Part 395, Hours of Service of Drivers, will

be assessed two points.

Vehicle Factor

When there are a combination of three or more inspections

recorded in the Motor Carrier Management Information System (MCMIS)

during the twelve months prior to the CR or performed at the time of

the review, the Vehicle Factor (Parts 393 & 396) will be evaluated

on the basis of the Out-of-Service (OOS) rates and noncompliance

with acute regulations and/or a pattern of noncompliance with

critical regulations. The results of the review of the OOS rate will

affect the Vehicle Factor rating as follows:

1. If a motor carrier has three or more roadside vehicle

inspections in the twelve months prior to the carrier review, or

three vehicles inspected at the time of the review, or a combination

of the two totaling three or more, and the vehicle OOS rate is 34%

or greater, the initial factor rating will be conditional. The

requirements of Part 396--Inspection, Repair, and Maintenance, will

be examined during each review. The results of the examination could

lower the factor rating to unsatisfactory if noncompliance with an

acute regulation or a pattern of noncompliance with critical

regulation is discovered. If the examination of the Part 396

requirements reveals no such problems with the systems the motor

carrier is required to maintain for compliance, the Vehicle Factor

remains conditional.

2. If a carrier's vehicle OOS rate is less than 34%, the initial

factor rating will be satisfactory. If noncompliance with an acute

regulation or a pattern of noncompliance with a critical regulation

is discovered during the examination of Part 396 requirements, the

factor rating will be lowered to conditional. If the examination of

Part 396 requirements discovers no such problems with the systems

the motor carrier is required to maintain for compliance, the

Vehicle Factor remains satisfactory.

Nearly two million vehicle inspections occur on the roadside

each year. This vehicle inspection information is retained in the

MCMIS and is integral to evaluating motor carriers' ability to

successfully maintain their vehicles. Since many of the roadside

inspections are targeted to visibly defective vehicles and since

there are a limited number of inspections for many motor carriers,

the use of that data is limited. Each CR will continue to have the

requirements of Part 396-Inspection, Repair, and Maintenance,

reviewed as indicated by the above explanation.

Accident Factor

In addition to the five regulatory rating factors, a sixth

factor is included in the process to address the accident history of

the motor carrier. This factor is the recordable accident rate which

the carrier has experienced during the past 12 months. Recordable

accident means an accident involving a commercial motor vehicle

operating on a public road in interstate or intrastate commerce

which results in a fatality; bodily injury to a person who, as a

result of the injury, immediately receives medical treatment away

from the scene of the accident; one or more motor vehicles incurring

disabling damage as a result of the accident requiring the motor

vehicle to be transported away from the scene by a tow truck or

other motor vehicle.

The recordable accidents per million miles were computed for

each CR performed in Fiscal Year 1995. The national average for all

carriers rated was 0.812, and 1.029 for carriers operating entirely

within the 100 air mile radius.

Experience has shown that those motor carriers operating

primarily in less than a 100 air mile radius (normally in urban

areas) have a higher exposure to accident situations because of

their environment and normally have higher accident rates.

The recordable accident rate will be used to rate Factor 6,

Accident. It will be used only when a motor carrier incurs two or

more recordable accidents within the 12 months prior to the CR. An

urban carrier (a carrier operating entirely within the 100 air mile

radius) with a recordable accident rate greater than 2.1 will

receive an unsatisfactory rating for the accident factor. All other

carriers with a recordable accident rate greater than 1.6 will

receive an unsatisfactory factor rating. The rates are a result of

doubling the national average accident rate for all carriers rated

in Fiscal Year 1995.

Factor Ratings

In the methodology, parts of the FMCSRs and the HMRs having

similar characteristics are combined together into five regulatory

areas called ``factors.''

[[Page 28833]]

The following table shows the five regulatory factors, parts of

the FMCSRs and HMRs associated with each factor, and the accident

factor.

Factors

----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------

Factor 1........................... General............... = Parts 387 and 390.

Factor 2........................... Driver................ = Parts 382, 383 and 391.

Factor 3........................... Operational........... = Parts 392 and 395.

Factor 4........................... Vehicle............... = Parts 393 and 396.

Factor 5........................... Haz. Mat.............. = Parts 397, 171, 177 and 180.

Factor 6........................... Accident Factor....... = Recordable Rate.

----------------------------------------------------------------------------------------------------------------

Factor Ratings are determined as follows:

``Satisfactory''--if the acute and/or critical = 0 points

``Conditional''--if the acute and/or critical = 1 point

``Unsatisfactory''--if the acute and/or critical = 2 or more points

Safety Rating

The ratings for the six factors are then entered into a rating

table which establishes the motor carrier's safety rating.

The FHWA has developed a computerized rating formula for

assessing the information obtained from the CR document and is using

that formula in assigning a safety rating.

Motor Carrier Safety Rating Table

------------------------------------------------------------------------

Factor ratings

------------------------------------------------- Overall safety rating

Unsatisfactory Conditional

------------------------------------------------------------------------

0............................. 2 or less....... Satisfactory.

0............................. More than 2..... Conditional.

1............................. 2 or less....... Conditional.

1............................. More than 2..... Unsatisfactory.

2 or more..................... 0 or more....... Unsatisfactory.

------------------------------------------------------------------------

Anticipated Safety Rating

The anticipated (emphasis added) safety rating will appear on

the CR.

The following appropriate information will appear after the last

entry on the CR, MCS-151, Part B.

``It is anticipated the official safety rating from Washington,

D.C. will be SATISFACTORY.''

or

``It is anticipated the official safety rating from Washington,

D.C. will be CONDITIONAL. The safety rating will become effective

thirty days from the date of the CR.''

or

``It is anticipated the official safety rating from Washington,

D.C., will be UNSATISFACTORY. The safety rating will become

effective thirty days from the date of the CR.''

Assignment of Rating/Motor Carrier Notification

When the official rating is determined in Washington, D.C., the

FHWA notifies the motor carrier in writing of its safety rating as

prescribed in Sec. 385.11. An anticipated safety rating which is

higher than the existing rating becomes effective as soon as the

official safety rating from Washington, D.C. is issued. Notification

of a conditional or unsatisfactory rating includes a list of those

Parts of the regulations, or recordable accident rate for which

corrective actions must be taken by the motor carrier to improve its

overall safety performance.

Motor Carrier Procedural Rights

Under Secs. 385.15 and 385.17, motor carriers have the right to

petition for a review of their ratings if there are factual or

procedural disputes, and to request another review after corrective

actions have been taken.

Conclusion

The FHWA believes this ``safety rating methodology'' is a

reasonable approach for assigning a safety rating which best

describes the current safety fitness posture of a motor carrier as

required by the safety fitness regulations (Section 385.9).

Improved compliance with the regulations leads to an improved

rating, which in turn increases safety. This increased safety is our

regulatory goal.

List of Acute and Critical Regulations

Sec. 382.115(c) Failing to implement an alcohol and/or controlled

substance testing program. (acute)

Sec. 382.201 Using a driver who has an alcohol concentration of

0.04 or greater. (acute)

Sec. 382.211 Using a driver who has refused to submit to an alcohol

controlled substances test required under Part 382. (acute)

Sec. 382.213(b) Using a driver who has used a controlled substance.

(acute)

Sec. 382.215 Using a driver who has tested positive for a

controlled substance. (acute)

Sec. 382.301(a) Failing to require driver to undergo pre-employment

controlled substance testing. (critical)

Sec. 382.303(a) Failing to conduct post accident testing on driver

for alcohol and/or controlled substances. (critical)

Sec. 382.305 Failing to implement a random controlled substances

and/or an alcohol testing program. (acute)

Sec. 382.305(b)(1) Failing to conduct random alcohol testing at an

annual rate of not less than 25 percent of the average number of

driver positions. (critical)

Sec. 382.305(b)(2) Failing to conduct random controlled substances

testing at an annual rate of not less than 50 percent of the average

number of driver positions. (critical)

Sec. 382.309(a) Using a driver who has not undergone a return-to-

duty alcohol test with a result indicating an alcohol concentration

of less than 0.02. (acute)

Sec. 382.309(b) Using a driver who has not undergone a return-to-

duty controlled substances test with a result indicating a verified

negative result for controlled substances. (acute)

Sec. 382.503 Driver performing safety sensitive function, after

engaging in conduct prohibited by Subpart B, without being evaluated

by substance abuse professional, as required by Sec. 382.605.

(critical)

Sec. 382.505(a) Using a driver within 24 hours after being found to

have an alcohol concentration of 0.02 or greater but less than 0.04.

(acute)

[[Page 28834]]

Sec. 382.605(c)(1) Using a driver who has not undergone a return-

to-duty alcohol test with a result indicating an alcohol

concentration of less than .02 or with verified negative test

result, after engaging in conduct prohibited by Part 382 Subpart B.

(acute)

Sec. 382.605(c)(2)(ii) Failing to subject a driver who has been

identified as needing assistance to at least six unannounced follow-

up alcohol and controlled substance tests in the first 12 months

following the driver's return to duty. (critical)

Sec. 383.23(a) Operating a commercial motor vehicle without a valid

commercial driver's license. (critical)

Sec. 383.37(a) Allowing, requiring, permitting, or authorizing an

employee with a Commercial Driver's License which is suspended,

revoked, or canceled by a state or who is disqualified to operate a

commercial motor vehicle. (acute)

Sec. 383.37(b) Allowing, requiring, permitting, or authorizing an

employee with more than one Commercial Driver's License to operate a

commercial motor vehicle. (acute)

Sec. 383.51(a) Allowing, requiring, permitting, or authorizing a

driver to drive who is disqualified to drive a commercial motor

vehicle. (acute)

Sec. 387.7(a) Operating a motor vehicle without having in effect

the required minimum levels of financial responsibility coverage.

(acute)

Sec. 387.7(d) Failing to maintain at principal place of business

required proof of financial responsibility. (critical)

Sec. 387.31(a) Operating a passenger carrying vehicle without

having in effect the required minimum levels of financial

responsibility. (acute)

Sec. 387.31(d) Failing to maintain at principal place of business

required proof of financial responsibility for passenger vehicles.

(critical)

Sec. 390.15(b)(2) Failing to maintain copies of all accident

reports required by State or other governmental entities or

insurers. (critical)

Sec. 390.35 Making, or causing to make fraudulent or intentionally

false statements or records and/or reproducing fraudulent records.

(acute)

Sec. 391.11(a)/391.95 Using an unqualified driver, a driver who has

tested positive for controlled substances, or refused to be tested

as required. (acute)

Sec. 391.11(b)(6) Using a physically unqualified driver. (acute)

Sec. 391.15(a) Using a disqualified driver. (acute)

Sec. 391.45(a) Using a driver not medically examined and certified.

(critical)

Sec. 391.45(b) Using a driver not medically examined and certified

each 24 months. (critical)

Sec. 391.51(a) Failing to maintain driver qualification file on

each driver employed. (critical)

Sec. 391.51(b)(1) Failing to maintain medical examiner's

certificate in driver's qualification file. (critical)

Sec. 391.51(c)(1) Failing to maintain medical examiner's

certificate in driver's qualification file. (critical)

Sec. 391.51(c)(3) Failing to maintain inquiries into driver's

driving record in driver's qualification file. (critical)

Sec. 391.51(d)(1) Failing to maintain medical examiner's

certificate in driver's qualification file. (critical)

Sec. 391.87(f)(5) Failing to retain in the driver's qualification

file test finding, either ``Negative'' and, if ``Positive'', the

controlled substances identified. (critical)

Sec. 391.93(a) Failing to implement a controlled substances testing

program. (acute)

Sec. 391.99(a) Failing to require a driver to be tested for the use

of controlled substances, upon reasonable cause. (acute)

Sec. 391.103(a) Failing to require a driver-applicant whom the

motor carrier intends to hire or use to be tested for the use of

controlled substances as a pre-qualification condition. (critical)

Sec. 391.109(a) Failing to conduct controlled substance testing at

a 50% annualized rate. (critical)

Sec. 391.115(c) Failing to ensure post-accident controlled

substances testing is conducted and conforms with 49 CFR Part 40.

(critical)

Sec. 392.2 Operating a motor vehicle not in accordance with the

laws, ordinances, and regulations of the jurisdiction in which it is

being operated. (critical)

Sec. 392.4(b) Requiring or permitting a driver to drive while under

the influence of, or in possession of, a narcotic drug, amphetamine,

or any other substance capable of rendering the driver incapable of

safely operating a motor vehicle. (acute)

Sec. 392.5(b)(1) Requiring or permitting a driver to drive a motor

vehicle while under the influence of, or in possession of, an

intoxicating beverage. (acute)

Sec. 392.5(b)(2) Requiring or permitting a driver who has consumed

an intoxicating beverage within 4 hours to operate a motor vehicle.

(acute)

Sec. 392.6 Scheduling a run which would necessitate the vehicle

being operated at speeds in excess of those prescribed. (critical)

Sec. 392.9(a)(1) Requiring or permitting a driver to drive without

the vehicle's cargo being properly distributed and adequately

secured. (critical)

Sec. 395.1(i)(1)(i) Requiring or permitting a driver to drive more

than 15 hours. (Driving in Alaska.) (critical)

Sec. 395.1(i)(1)(ii) Requiring or permitting a driver to drive

after having been on duty 20 hours. (Driving in Alaska.) (critical)

Sec. 395.1(i)(1)(iii) Requiring or permitting driver to drive after

having been on duty more than 70 hours in 7 consecutive days.

(Driving in Alaska.) (critical)

Sec. 395.1(i)(1)(iv) Requiring or permitting driver to drive after

having been on duty more than 80 hours in 8 consecutive days.

(Driving in Alaska.) (critical)

Sec. 395.3(a)(1) Requiring or permitting driver to drive more than

10 hours. (critical)

Sec. 395.3(a)(2) Requiring or permitting driver to drive after

having been on duty 15 hours. (critical)

Sec. 395.3(b) Requiring or permitting driver to drive after having

been on duty more than 60 hours in 7 consecutive days. (critical)

Sec. 395.3(b) Requiring or permitting driver to drive after having

been on duty more than 70 hours in 8 consecutive days. (critical)

Sec. 395.8(a) Failing to require driver to make a record of duty

status. (critical)

Sec. 395.8(e) False reports of records of duty status. (critical)

Sec. 395.8(l) Failing to require driver to forward within 13 days

of completion, the original of the record of duty status. (critical)

Sec. 395.8(k)(1) Failing to preserve driver's record of duty status

for 6 months. (critical)

Sec. 395.8(k)(1) Failing to preserve driver's records of duty

status supporting documents for 6 months. (critical)

Sec. 396.3(b) Failing to keep minimum records of inspection and

vehicle maintenance. (critical)

Sec. 396.9(c)(2) Requiring or permitting the operation of a motor

vehicle declared ``out-of-service'' before repairs were made.

(acute)

Sec. 396.11(a) Failing to require driver to prepare driver vehicle

inspection report. (critical)

Sec. 396.11(c) Failing to correct Out-of-Service defects listed by

driver in a driver vehicle inspection report. (acute)

Sec. 396.17(a) Using a commercial motor vehicle not periodically

inspected. (critical)

Sec. 396.17(g) Failing to promptly repair parts and accessories not

meeting minimum periodic inspection standards. (acute)

Sec. 397.5(a) Failing to ensure a motor vehicle containing Class A

or B explosives, (Class 1.1, 1.2, or 1.3) is attended at all times

by its driver or a qualified representative. (acute)

Sec. 397.7(a)(1) Parking a motor vehicle containing Class A or B

explosives (1.1, 1.2, 1.3) within 5 feet of traveled portion of

highway. (critical)

Sec. 397.7(b) Parking a motor vehicle containing hazardous

material(s) within 5 feet of traveled portion of highway or street.

(critical)

Sec. 397.13(a) Permitting a person to smoke or carry a lighted

cigarette, cigar or pipe within 25 feet of a motor vehicle

containing explosives, oxidizing materials, or flammable materials.

(critical)

Sec. 397.19(a) Failing to furnish driver of motor vehicle

transporting Class A or B explosives (Class 1.1, 1.2, 1.3) with a

copy of the rules of Part 397 and/or emergency response

instructions. (critical)

Sec. 397.67(d) Requiring or permitting the operation of a motor

vehicle containing Division 1.1, 1.2, or 1.3 (explosive) material

that is not accompanied by a written route plan. (critical)

[[Page 28835]]

Sec. 171.15 Carrier failing to give immediate telephone notice of

an incident involving hazardous materials. (critical)

Sec. 171.16 Carrier failing to make a written report of an incident

involving hazardous materials. (critical)

Sec. 177.800(a) Failing to instruct a category of employees in

hazardous materials regulations. (critical)

Sec. 177.817(a) Transporting a shipment of hazardous materials not

accompanied by a properly prepared shipping paper. (critical)

Sec. 177.817(e) Failing to maintain proper accessibility of

shipping papers. (critical)

Sec. 177.823(a) Moving a transport vehicle containing hazardous

material that is not properly marked or placarded. (critical)

Sec. 177.841(e) Transporting a package bearing a poison label in

the same transport vehicle with material marked or known to be

foodstuff, feed, or any edible material intended for consumption by

humans or animals. (acute)

Sec. 180.407(a) Transporting a shipment of hazardous material in

cargo tank that has not been inspected or retested in accordance

with Sec. 180.407. (critical)

Sec. 180.407(c) Failing to periodically test and inspect a cargo

tank. (critical)

Sec. 180.417 Failing to mark a cargo tank which passed an

inspection or test required by Sec. 180.407. (critical)

Sec. 180.417(a)(1) Failing to retain cargo tank manufacturer's data

report certificate and related papers, as required. (critical)

Sec. 180.417(a)(2) Failing to retain copies of cargo tank

manufacturer's certificate and related papers (or alternative

report) as required. (critical)

[FR Doc. 97-13873 Filed 5-27-97; 8:45 am]

BILLING CODE 4910-22-P