Safety Fitness Procedure; Safety Ratings

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