98-30105. Safety Fitness Procedures

[Federal Register Volume 63, Number 217 (Tuesday, November 10, 1998)]
[Rules and Regulations]
[Pages 62957-62959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30105]


=======================================================================
-----------------------------------------------------------------------

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.

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

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, [phone], or Mr. Charles Medalen, 
Office of the Chief Counsel, [phone], 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.


[[Page 62958]]



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 [phone]. 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

[[Page 62959]]

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