Safety Fitness Procedures

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-AC71

Safety Fitness Procedures

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule; corrections.

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SUMMARY: The FHWA is making corrections to the November 6, 1997, final

rule on Safety Fitness Procedures. The final rule established a means

of determining whether a motor carrier has complied with the fitness

requirements of the Motor Carrier Safety Act of 1984. The final rule

included several minor errors which this document corrects.

DATES: Effective November 10, 1998.

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.

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SUPPLEMENTARY INFORMATION:

Electronic Access

Internet users can access all comments received by the U.S. DOT

Dockets, Room PL-401, by using the universal resource locator (URL):

http://dms.dot.gov. It is available 24 hours a day, 365 days each year.

Please follow the instructions online for more information and help.

An electronic copy of this document may be downloaded using a modem

and suitable communications software from the Government Printing

Office's Electronic Bulletin Board Service at (202) 512-1661. Internet

users may reach the Federal Register's home page at: http://

www.nara.gov/fedreg and the Government Printing Office's database at:

http://www.access.gpo.gov/nara.

Background

On November 6, 1997, the FHWA published a final rule incorporating

the agency's safety fitness rating methodology (SFRM) as an appendix to

49 CFR part 385, Safety Fitness Procedures (62 FR 60035). The SFRM is

used to measure the safety fitness of motor carriers against the

standard contained in 49 CFR Part 385. The final rule also included a

procedure which provides motor carriers with a 45-day period during

which a proposed rating can be challenged before it becomes effective.

The final rule included several minor errors.

Errors in Final Rule

There are references to commercial motor vehicles used to transport

``15 or more passengers, including the driver,'' in the Summary,

Discussion of Comments, Rulemaking Analysis, and Appendix B to Part

385. The definition of a ``commercial motor vehicle'' in Sec. 390.5

includes a passenger-carrying threshold which reads as follows: ``The

vehicle is designed to transport more than 15 passengers, including the

driver.'' Therefore, the wording used in the rule includes vehicles

that are not subject to the FMCSRs. To correct this problem, the agency

is replacing ``15 or more passengers, including the driver'' with

``more than 15 passengers, including the driver.''

In addition, the vehicle out-of-service (OOS) rate was omitted from

section II.A.2 of Appendix B. The first sentence in this section

currently reads ``If a carrier's vehicle OOS rate is less than percent,

the initial factor rating will be satisfactory.'' The sentence is being

revised to read ``If a carrier's vehicle OOS rate is less than 34

percent, the initial factor rating will be satisfactory.''

The motor carrier Rating Table in section III.A. of the Appendix is

being revised to replace ``0'' with ``1'' on the third line of the

first column. As revised, the table indicates that 1 unsatisfactory

factor rating and 2 or fewer conditional factor ratings, will result in

an overall safety rating of conditional.

Under section III.B. of the Appendix, Proposed Safety Rating, the

word ``OR'' was omitted between ``Your proposed safety rating is

SATISFACTORY'' and ``Your proposed safety rating is CONDITIONAL.'' The

words ``safety'' and ``days'' were omitted from the sentence following

``Your proposed safety rating is CONDITIONAL.'' The sentence is being

revised to read as follows: ``The proposed safety rating will become

the final safety rating 45 days after you receive this notice.''

Under section VII of the Appendix, List of Acute and Critical

Regulations, Secs. 391.87(f)(5) through 391.115(c) are being deleted to

conform to a final rulemaking for technical amendments which was

published on July 11, 1997 (62 FR 37150). That rule removed Subpart H

(Controlled Substances Testing) of 49 CFR Part 391 because the FHWA's

alcohol and controlled substances regulations are now codified at 49

CFR Part 382. Subpart H included Secs. 391.81-391.125, and the list of

acute and critical regulations is therefore being amended to remove the

references to these sections.

It has been brought to our attention that the discussion of

preventable accidents in section II.B.(e) of Appendix B may be subject

to misinterpretation. If a carrier has a proposed or current

unsatisfactory accident factor rating, and the carrier believes the

accident factor would not be unsatisfactory if evaluated on the basis

of a preventable accident rate, it should seek an administrative review

under Sec. 385.15. Some readers apparently believe that motor carriers

who contend that an accident was not preventable are required to

present the FHWA with a very detailed analysis or investigation of the

incident, perhaps based on the work of accident reconstructionists and

attorneys. That was not the agency's intention. Although there is

nothing to prevent a carrier from submitting extensive evidence of non-

preventability, the FHWA believes that a copy of an accident report

prepared by a government agency would generally be sufficient,

providing the report did not identify any actions the driver could have

taken to prevent the accident. The carrier could offer any additional

information or explanation it considered appropriate. For example, the

driver of a commercial motor vehicle (CMV) that is struck from behind

when it stops at a toll booth, or from the side when crossing an

intersection on a green light, has no realistic opportunity to avoid

the accident.

Rulemaking Analyses and Notices

This final rule makes minor corrections to the November 6, 1997,

final rule concerning safety fitness procedures. Since the amendments

to the final rule are simply corrections, the FHWA finds good cause

pursuant to 5 U.S.C. 553(b)(3)(B) to promulgate this final rule without

notice and comment rulemaking and to make it effective on the date of

publication in the Federal Register pursuant to 5 U.S.C. 553(d)(3).

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. The

agency has also determined that this action is not a significant

regulatory action under the Department of Transportation's regulatory

policies and procedures. This final rule is clerical in nature and does

not include substantive changes to the November 6, 1997, final rule

concerning safety fitness procedures.

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.

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (the Act) (Pub. L. 104-4)

requires each agency to assess the effects of its regulatory actions on

State, local, and tribal governments and the private sector. Any agency

promulgating a rule likely to result in a Federal mandate requiring

expenditures by a State, local, or tribal government or by the private

sector of $100 million or more in any one year must prepare a written

statement incorporating various assessments, estimates, and

descriptions that are delineated in the Act. The FHWA has determined

that the changes in this rule will not have an impact of $100 million

or more in any one year.

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

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this rulemaking does not have sufficient Federalism implications to

warrant the preparation of a Federalism assessment.

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, Motor carriers, and Safety fitness procedures.

Issued on: October 29, 1998.

Gloria J. Jeff,

Deputy Administrator.

In consideration of the foregoing, the FHWA is amending title 49,

Code of Federal Regulations, Chapter III, Appendix B to 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. Appendix B to Part 385 is amended by revising section

II.A.(a)2., the motor carrier safety table in section III.A., and

sections III.B.(a) and III.B.(c); and in section VII by removing the

citations and text for Secs. 391.87(f)(5) through 391.115(c), to read

as follows:

Appendix B to Part 385--Explanation of Safety Rating Process

* * * * *

II. Converting CR Information Into A Safety Rating

* * * * *

A. Vehicle Factor

(a) * * *

2. If a carrier's vehicle OOS rate is less than 34 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.

* * * * *

III. Safety Rating

A. Rating Table

* * * * *

Motor Carrier Safety Rating Table

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

Factor ratings

----------------------------------------------------- Overall Safety

Unsatisfactory Conditional rating

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

0............................... 2 or fewer........ Satisfactory

0............................... more than 2....... Conditional

1............................... 2 or fewer........ 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.''

OR

``Your proposed safety rating is CONDITIONAL.'' The proposed

safety rating will become the final safety rating 45 days after you

receive this notice.

OR

``Your proposed safety rating is UNSATISFACTORY.'' The proposed

safety rating will become the final safety rating 45 days after you

receive this notice

* * * * *

(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 more than 15 passengers, including the

driver.

* * * * *

[FR Doc. 98-30105 Filed 11-9-98; 8:45 am]

BILLING CODE 4910-22-M