[Federal Register Volume 62, Number 102 (Wednesday, May 28, 1997)]
[Proposed Rules]
[Pages 28826-28835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13873]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 385
[FHWA Docket No. MC-94-22; FHWA-97-2252]
RIN 2125-AC 71
Safety Fitness Procedure; Safety Ratings
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: This document is in response to a decision of the U.S. Court
of Appeals, District of Columbia Circuit, entered on March 18, 1997. In
this rulemaking the FHWA is proposing to incorporate a modified Safety
Fitness Rating Methodology (SFRM), which would be used to measure the
safety fitness of motor carriers against the safety standard, as an
appendix to its Safety Fitness Procedures regulations. An interim final
rule published elsewhere in today's Federal Register incorporates the
current SFRM for an interim period to rate motor carriers that are
transporting hazardous materials in quantities for which vehicle
placarding is required, or transporting 15 or more passengers including
the driver.
DATES: Comments must be received on or before July 28, 1997.
ADDRESSES: Submit written, signed comments to the docket number that
appears in the heading of this document to the Docket Clerk, U.S. DOT
Dockets, Room PL-401, 400 Seventh Street, SW., Washington, D.C. 20590-
0001. All comments received will be available for examination at the
above address between 10 a.m. and 5 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped envelope or postcard.
FOR FURTHER INFORMATION CONTACT: Mr. William C. Hill, Vehicle and
Operations Division, Office of Motor Carrier Research and Standards,
(202) 366-4009, or Mr. Charles Medalen, Office of the Chief Counsel,
(202) 366-1354, Federal Highway Administration, 400 Seventh Street,
SW., Washington, D.C. 20590. Office hours are from 7:45 a.m. to 4:15
p.m., e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Court of Appeals for the District of Columbia Circuit
ruled that the FHWA's procedures for assigning safety ratings were
adopted contrary to law. MST Express and Truckers United for Safety v.
Department of Transportation and Federal Highway Administration, No.
96-1084, March 18,1997. The court ruled that the FHWA had failed to
carry out its statutory obligation to establish, by regulation, a means
of determining whether a motor carrier has complied with the safety
fitness requirements of the Motor Carrier Safety Act of 1984 (MCSA)
(codified at 49 U.S.C 31144). Because the carrier's safety rating was
determined based upon rules that were not promulgated pursuant to
notice and comment rulemaking, as 49 U.S.C. 31144(a) requires, the
petitioner's conditional safety rating was vacated and the matter
remanded to the FHWA ``for such further action as it may wish to take,
consistent with the decision.''
In this notice of proposed rulemaking (NPRM), the FHWA proposes to
modify the SFRM, incorporate it as Appendix B to Part 385, and use it
as the means for deciding whether motor carriers meet the safety
fitness requirements.
The FHWA has been using an SFRM, comprised of six rating factors,
since October 1, 1989, as the mechanism for determining how well motor
carriers are adhering to 49 CFR 385.5, Safety fitness standard. In
addition to making the detailed explanation available since August 16,
1991, the FHWA has sought comments from interested members of the
public in FHWA Docket Nos. MC-91-8 (56 FR 40801) and MC-94-22 (59 FR
47203).
In the first docket, the FHWA solicited public comment on an
interim final rule (56 FR 40801) (August 16, 1991) implementing that
provision of the MCSA of 1990, Pub. L. 101-500, Sec. 15(b)(1), 104
Stat. 1218, 49 U.S.C. 5113, prohibiting a motor carrier with an
unsatisfactory safety rating from operating a commercial motor vehicle
(CMVs) to transport: (1) hazardous materials in quantities for which
vehicle placarding is required, or (2) more than 15 passengers
including the driver. This prohibition becomes effective after 45 days
have elapsed following receipt of an unsatisfactory safety rating
issued by the FHWA. During the 45-day period, the motor carrier should
take such action as may be necessary to improve its safety rating to
conditional or satisfactory or be subject to the prohibition. Fourteen
comments were received in response to the 1991 interim final rule. Such
of those comments as provide relevant information to this NPRM are
discussed herein. The FHWA will also determine whether the 1991 interim
rule is to be made final after consideration of the comments received
in response to today's NPRM.
In the second docket, the FHWA published in the Federal Register on
September 14, 1994, a notice and request for comments (59 FR 47203)
explaining changes made to the SFRM in 1993, which was then being used
to evaluate a motor carrier's adherence to the Sec. 385.5 safety
fitness standard. Additional changes to the SFRM, which became
effective on October 1, 1994, were also explained. These changes
initiated the use of violations of the safety regulations designated as
``acute'' or ``critical'' to rate each of the five regulatory factors
evaluated when performing a compliance review (CR) at a carrier's place
of business.
The FHWA also solicited comments concerning: (1) changes made in
1994, (2) the direction that future modifications to the SFRM should
take, and (3) how best to disseminate information to the industry about
new regulations and the FHWA programs that encourage ``voluntary
compliance.''
The 17 comments received in response to changes to the rating
criteria are discussed in this notice to the extent they provide
relevant information to this NPRM. Comments that are duplicative of
those discussed under the prior docket discussion are not repeated.
In today's NPRM, the FHWA is proposing to incorporate as Appendix B
to Part 385 the SFRM in a form substantially similar to that which has
been used over the past 8 years and adopted by the interim final rule
published elsewhere in today's Federal Register. The SFRM proposed in
this NPRM has been modified, however, to change the accident factor.
The reasons for this proposed modification are as follows. The
preventable recordable accident criteria have been used by
[[Page 28827]]
FHWA since the mid-1980s. The FHWA has, however, received complaints
that the criteria are too subjective. During the CR, preventability is
evaluated based on the safety specialist's assessment. The FHWA
believes that if a driver, who exercises normal judgment and foresight
could have foreseen the possibility of the accident that in fact
occurred, and avoided it by taking steps within his/her control which
would not have risked causing another kind of mishap, the accident was
preventable. However, individuals will not always agree when the same
fact situations are evaluated.
We are proposing to use all recordable accidents in evaluating the
accident factor because we believe this is a more objective standard.
The data indicate that the vast majority of all accidents have been
determined to be preventable. For Fiscal Year 1995, the average
accident rate, derived from CRs performed during that time frame, was
0.812 for all carriers and 1.029 for carriers that operated entirely
within a 100 air mile radius.
We are proposing to double the average rate to determine when a
carrier is unsatisfactory in the accident factor. The FHWA believes
that it would be reasonable to rate unsatisfactory, for the accident
factor alone, any motor carrier with an accident rate that is twice the
average rate for all carriers (or for carriers operating entirely
within the 100 air mile radius, as the case may be), because the FHWA
believes that it is likely that a carrier with an accident rate
substantially above the norm for similarly situated carriers has
inadequate or improperly functioning safety management controls. See 49
CFR Sec. 385.7. Nevertheless, the recordable accident rate will be used
to rate Factor 6, Accident, for a carrier only when the carrier has had
two or more recordable accidents within the 12 months prior to the CR.
The FHWA believes that a single accident within that time frame could
be due to any number of reasons not reflecting on the adequacy of the
carrier's safety management controls. Additionally, the FHWA proposes
no longer to assign satisfactory or conditional ratings for this
factor; only unsatisfactory ratings will be assigned.
Discussion of Comments
Purpose of Safety Ratings
The Interstate Truckload Carriers Conference (ITCC) stated that the
FHWA's safety rating process was never intended to be used as an
administrative mechanism for imposing severe sanctions upon motor
carriers. The safety rating system, according to the ITCC, was
developed as an educational and management tool so the FHWA could focus
its limited resources on the operations of motor carriers with
problems. The commenter claimed that a motor carrier could receive a
rating as a result of factors or considerations which were never part
of a rulemaking proceeding and thus possibly be a violation of the
Administrative Procedure Act (APA).
The American Trucking Associations (ATA) had similar concerns that
because the safety criteria had not gone through public notice and
comment rulemaking, it would be a possible violation of the APA and
unfair for the FHWA to use those criteria for enforcement purposes. The
ATA wanted the FHWA to provide the formula that establishes the
unsatisfactory safety rating. It also stated that the safety rating
process should be developed through notice and comment rulemaking.
Comments concerning the safety review (SR) are no longer relevant since
that review process was discontinued on September 30, 1994.
The FHWA adopted a final rule in 1988, after notice and opportunity
for comment, that implemented the requirements of section 215 of the
MCSA of 1984 and established a procedure to determine the safety
fitness of motor carriers. The FHWA believed that the SFRM that it used
to supplement the procedures set forth in its regulations did not
amount to substantive requirements necessitating notice and comment
rulemaking. In its interim final rule adopted in 1991, the FHWA advised
motor carriers that they could obtain copies of the safety rating
process by contacting the agency. See 56 FR at 40803. This offer to
provide copies of the SFRM to carriers was reiterated in 1994. See 59
FR at 47205.
In light of the court's decision in MST Express, the FHWA is now
soliciting public comment on its proposal to add the SFRM, modified as
described in this NPRM, to Part 385. The FHWA notes that the SFRM
proposed today has been modified, in part, in light of public comments
received in response to the 1991 interim final rule and the 1994
request for public comment.
Accident Factor
The ATA and the American Bus Association (ABA) were concerned about
the inclusion of the reportable/preventable (subsequently changed to
recordable/preventable) accident frequency in the rating process, as
there are no regulations specifying acceptable frequencies for a
satisfactory rating. Also, they believe that in borderline cases
preventability is a judgment call that may be influenced by short-term
objectives. The ABA stated that the FHWA has not defined a preventable
accident, and it would like the criteria for preventability ``spelled
out.'' The ABA also suggested that the FHWA could consider all
reportable (now recordable) accidents in its safety rating process,
which would eliminate subjective evaluations of whether particular
accidents were preventable.
In response to these comments, the FHWA is proposing to adopt a
recordable accident rate for the accident factor in the SFRM as
discussed above.
The recordable accident rate will be used to rate Factor 6,
Accident, only when two or more recordable accidents occurred within
the 12 months prior to the initiation of the CR. Urban carriers (a
carrier operating entirely within the 100 air mile radius) with a
recordable accident rate greater than 2.1 will receive an
unsatisfactory rating for the accident factor. All other carriers with
a recordable accident rate greater than 1.6 would receive an
unsatisfactory factor rating.
Definitions of ``Conditional'' and ``Unsatisfactory''
The ATA noted that the Sec. 385.3 definitions of conditional and
unsatisfactory should be changed to reflect Sec. 385.5 (a)-(k), and not
(h), as published in the August 16, 1991, Federal Register. That change
is proposed in this notice.
Objectivity of Ratings
The Chemical Waste Transportation Institute (CWTI) supported the
FHWA's efforts to develop a computerized rating formula, and wanted the
subjectivity minimized as much as possible. It also suggested that the
FHWA describe what steps are being taken to minimize human error in the
safety rating process.
The FHWA believes that having modified the SFRM to rate on the
basis of actual violations of acute regulations and patterns of
violations of critical regulations, as well as performance proposed to
be measured by recordable accidents and vehicle out-of-service (OOS)
rates from roadside vehicle/driver inspections, the safety rating
process has been made more objective.
Definitions of ``Acute'' and ``Critical'' Regulations
General Electric recommended having the ``critical'' and ``acute''
regulations made available to the public and the definitions of the
terms ``critical'' and ``acute'' defined in part 385. It also
recommended that the definitions of conditional and unsatisfactory be
revised to make a clearer distinction
[[Page 28828]]
between these two ratings. The ABA stated that ``the definitions of
critical and acute violations are too vague to allow a reasonable
objective judgment.'' The ``acute'' and ``critical'' regulations and
the definitions of the terms are being published in the proposed
Appendix B to 49 CFR 385.
Algorithm
Blakely & Associates wanted a computerized algorithm with a formula
table so that carriers can determine ratings themselves. It also
suggested that the FHWA provide to the carrier the rating at the
conclusion of the CR. The SFRM contains explanations of the factor
ratings and the Motor Carrier Safety Rating Table, which is the formula
for determining a safety rating. The FHWA has also modified its
procedures to provide motor carriers with an anticipated rating at the
conclusion of the CR.
Elimination of the SR
Hanson Trucking and the ITCC believe that the SR should not have
been eliminated as ``it takes the focus of the audit from realistic
safety concerns and places the focus on inaccuracies in paperwork.''
Hanson Trucking did not believe that noncompliance in the areas of
false entries and improper form and manner will lead to increased
accident frequency and severity. The ITCC believed that the 70-question
format allowed carriers to police their operations and determine the
quality of their safety compliance in advance of a CR by the FHWA. It
stated that the first concern of an on-site audit should be the
accident history of the motor carrier. Further, the ITCC believes that
if a high accident frequency is in evidence, a CR should then be
conducted in an attempt to educate the carrier in accident
preventability. According to the ITCC, the lack of significant accident
data (no accidents) should indicate that the motor carrier has an
adequate safety program in place. The end goal, the ITCC stated, should
be: no accident problems equals no CR or enforcement action.
The FHWA discontinued the SR since the CR is a more objective means
to assess a motor carrier's adherence to the Sec. 385.5, safety fitness
standard. To the extent a carrier needs to know how far into
noncompliance it can slip without risking a bad rating, the carrier
will now be able to assess its safety compliance by conducting a self-
review to determine if it has violations of ``acute'' regulations or
patterns of violations of ``critical'' regulations.
Vehicle Factor
In factor 4 (Vehicle), the California Highway Patrol (CHP) believes
the former system of a conditional threshold at 17 percent vehicle OOS
rate for the vehicle factor was more appropriate than the current 34
percent OOS rate for conditional, and the Advocates for Highway and
Auto Safety (Advocates) generally agreed with this position. The CWTI
requested the FHWA to disclose its rationale for 34 percent OOS rate
for a conditional factor 4 rating and for selecting 10 percent for the
pattern of violations when evaluating compliance with ``critical''
regulations. The NPTC stated that the original 17 percent OOS rate
should be the threshold for assigning a conditional factor rating, and
then random vehicle inspections should be performed at the time of the
CR. If there is total compliance with the part 396 requirements, the
factor rating should be upgraded.
The ATA and several carriers were concerned that vehicles are
sometimes inspected, no defects are discovered and the vehicles are
then allowed to proceed without written inspection reports. Because of
this, they contend the FHWA should re-evaluate the use of OOS
percentages as a major component of factor 4 (Vehicle) rating, and
place more importance on the motor carrier's compliance with part 396.
Some carriers contended that for the OOS rate to be an accurate
representation of a motor carrier's compliance with the regulations, it
must be adjusted to the carrier's size.
The FHWA considered the comments concerning the method of
evaluating compliance with the Vehicle Factor. The FHWA believes that
the current method is appropriate and will not propose any changes at
this time. Our goal is to utilize ``performance-based information'' to
rate motor carriers whenever possible. Vehicle OOS rates are,
therefore, used as a first indicator to evaluate factor 4-(Vehicle). A
minimum of three or more inspections would be required to use vehicle
OOS rates as a first indicator. The three inspections must have
occurred in the twelve months prior to the CR, or be a combination of
inspections performed at the motor carrier's facility at the time of
the CR.
If it appears during the CR that the motor carrier's maintenance
has either improved or deteriorated since the inspections in the Motor
Carrier Management Information System, it is appropriate for the
individual conducting the CR to perform inspections at the motor
carrier's facility if vehicles are available (vehicles ready to be
dispatched or vehicles that just came off the road). Inspections may
also be performed at the motor carrier's facility at the time of the
CR, if there are fewer than three inspections on the carrier profile
for the prior 12 months.
The reason for using a 34 percent or greater OOS rate for the
conditional first indicator is as follows: (1) The national OOS rate
has been in the low thirties for several years; (2) many of the
roadside inspections are targeted at visibly defective vehicles; (3)
some vehicles receive a cursory inspection and if there are no apparent
defects, the vehicles are allowed to proceed without an inspection
report being generated; and (4) using a minimum of three or more
vehicle inspections, one OOS vehicle should not be able to impact the
factor rating. The second indicator is the motor carrier's compliance
with part 396, inspection, repair, and maintenance requirements. The
number of records to be reviewed is derived from the International
Standard of sampling procedures. If a violation of a part 396 acute
regulation, or a pattern of violations of a critical regulation is
discovered, a first indicator factor rating of conditional will be
lowered to unsatisfactory, and a satisfactory factor rating to
conditional, respectively.
Using two indicators to evaluate this factor is a reasonable
approach. The vehicle OOS rates are either confirmed, with the first
indicator rating remaining the same, or if significant noncompliance
with part 396 is discovered, the factor rating is lowered to
conditional or unsatisfactory, respectively. All of the defects that
have been identified as OOS violations have the same weight, which is
an additional reason for the OOS rate being set at 34 percent for
conditional as the first indicator in the factor rating.
Selection of Records for Review
The ATA and several carriers stated that the safety rating process
is not based upon a random sampling of the motor carrier's records. The
FHWA has given a great deal of consideration to the issue of selecting
carriers' records for review. The Sec. 385.5 safety fitness standard
was developed to measure the effectiveness of a motor carriers' safety
management controls. The CR identifies and documents areas where a
motor carrier's safety management controls have failed or are
ineffective. The FHWA focuses its review on drivers and vehicles that
were involved in accidents, those drivers who incurred OOS violations
during roadside inspections, or those drivers or vehicles for which
violations are more likely to be found (e.g. those drivers driving the
[[Page 28829]]
most miles). The drivers and vehicles reviewed using the ``focused
sample'' are the same ones carrier officials should be focusing their
efforts upon. The minimum number of records to be reviewed is derived
from the International Standard of sampling procedures, which is based
upon the number of drivers or vehicles that the motor carrier operates.
When the number of records from this focused sample has been exhausted
and there are fewer records than the sampling guidelines specify,
random sampling is used to meet the minimum number required to be
reviewed. Classifying certain regulations as ``acute'' or ``critical''
assists motor carriers in their compliance efforts as they can
concentrate their initial efforts on complying with these regulations.
It should be noted, however, that only full compliance with all of the
safety regulations will ensure that motor carriers comply with the
provisions of the Sec. 385.5, safety fitness standard.
``Acute'' regulations are ones where violations should not occur
for a motor carrier with effective safety management controls. An
example of an ``acute'' regulation is Sec. 382.211, using a driver who
has refused to submit to an alcohol or controlled substances test
required under part 382. A motor carrier which commits this violation
is one that instructed the driver to undergo testing, and the driver
refused to be tested. There is no reasonable excuse for a carrier to
use the driver after that driver's refusal to be tested.
A pattern of noncompliance is required before a rating factor is
impacted by violations of ``critical'' regulations because even a motor
carrier with effective safety management controls will, in all
likelihood, violate some of the ``critical'' regulations. An example of
a ``critical'' regulation is Sec. 395.3(a)(1), requiring or permitting
driver to drive more than 10 hours. By identifying this regulation as
``critical,'' the FHWA has ensured that violations will not impact
factor 3 (Hours of Service) unless they constitute a pattern. A pattern
is defined as a number of violations (more than one) constituting 10
percent or more of the occasions where like violations could have
occurred. Thus, when evaluating compliance with a ``critical''
regulation, the motor carrier's safety management controls usually are
judged to be effective if the number of discovered violations is under
10 percent.
The FHWA believes that motor carriers with effective safety
management controls are able to achieve a level of compliance with
``critical'' regulations before they reach a pattern of violations. For
rating purposes, all violations are considered, and effective safety
management oversight should result in a violation rate of less than 10
percent of the records or occasions reviewed.
Opportunity to Challenge a Rating
Several commenters wanted the procedures changed to allow a motor
carrier 30 days to challenge an anticipated safety rating where there
are factual issues in dispute.
The FHWA believes that providing a motor carrier the anticipated
rating at the conclusion of the CR gives the carrier adequate notice
that a rating of conditional or unsatisfactory will become effective 30
days from that date. Motor carriers receiving such a notice can
immediately: (1) Take corrective action on the discovered violations,
which will enable them to request a reevaluation based upon corrective
action taken (Sec. 385.17), and/or (2) petition the Director, Office of
Motor Carrier Field Operations, if there are factual or procedural
issues in dispute (Sec. 385.15). Either option may be utilized before
the carrier receives a final safety rating.
Point Assessment for Violations of ``Acute'' and ``Critical''
Regulations
The ATA stated that assessing one point for a violation of an
`acute' regulation discriminates against the large motor carrier since
more records are reviewed. Thus, it contends, there is a greater chance
of one violation being discovered. The ATA further stated that
violations of ``acute'' regulations should be evaluated on a percentage
basis analogous to the 10% threshold for ``critical'' regulations.
Rocor International wanted the percentage of violations of an ``acute''
regulation to be set at five percent of the records examined before one
point is assessed. It stated that this would be fairer to the larger
motor carrier where the probability of discovering a violation of one
``acute'' regulation increases directly with the number of records
examined. The NPTC commented ``Automatically assigning a conditional
rating for a single instance of noncompliance with an ``acute''
regulation may not be justified and fair. Just as there are many
factors that determine the safety fitness of a motor carrier--vehicle
condition, driver condition, over-the-road performance--when one part
of one of these factors is out of compliance, it does not necessarily
mean the motor carrier is unsafe.''
Acute regulations have been identified as regulations where
noncompliance is so severe (and avoidable by the attentive motor
carrier) that its occurrence is itself demonstrable of the absence of
effective safety management controls. It is reasonable to demand zero
tolerance for violations of these regulations. Thus, regardless of the
number of motor carrier records checked, there should not be any
instances of noncompliance with these identified ``acute'' regulations.
If a motor carrier has violated an acute regulation, one instance of
noncompliance will cause the factor rating to be conditional, but will
not, in and of itself, cause the motor carrier to have a less than
satisfactory safety rating. A motor carrier with as many as two factor
ratings of conditional will still be rated as satisfactory. The FHWA
believes that this is adequate protection for a motor carrier, of any
size, that violates an acute regulation.
The CHP and the Advocates agreed with two points being assessed for
a pattern of non-compliance with part 395 critical regulations.
On the other hand, the ATA and several other commenters believed
that there is no justification for doubling the point value for hours
of service violations, and that the FHWA has no evidence to show that
fatigue or lack of alertness related accidents are tied to hours of
service violations. Schafer Trucking wanted factor 3 (Hours of Service)
changed from two points to one point for a pattern of noncompliance
with a critical regulation unless the CR reveals the absence of an
effective hours of service compliance program as indicated by either:
(i) A recordable/preventable accident rate of more than 0.45 per
million miles, or (ii) the failure of the carrier to have in place an
hours of service compliance program enforced by sanctions which include
driver suspensions and/or terminations for hours of service
violations.''
The FHWA believes that there are data to draw the conclusion that
hours of service violations are related to fatigue. Studies have shown
that driver error is a significant factor in the majority of accidents.
The FHWA is continuing its major research efforts to better understand
fatigue. There are no ``acute'' regulations in part 395 (Hours of
Service). Thus, to have a rating of less than satisfactory in factor 3,
a motor carrier would need a pattern of noncompliance with a
``critical'' regulation. When reviewing driver records of duty status
(RODS), it is very rare that only several records are reviewed as a
driver would typically generate 30 RODS in a month. The FHWA believes
that motor carriers with effective safety management controls
[[Page 28830]]
will have less than a 10 percent rate of noncompliance with any of the
part 395 critical regulations.
Rating Factors
The ITCC stated that the assignment of equal weights for the six
rating factors seems inconsistent with the underlying purpose of giving
more weight to violations of regulations that are acute or critical. It
did not think that all factors should be weighted equally. The ITCC
also stated that the overall factor rating is the correct area in which
to place greater emphasis upon compliance with violations of the hours
of service regulations.
The FHWA's SFRM, developed in 1988-89, combines parts of the FMCSRs
and HMRs having similar characteristics into five regulatory areas
called ``rating factors.'' A sixth factor is included to address the
accident history of the motor carrier. Each of the factors is rated
satisfactory, conditional or unsatisfactory. Each of the six factors is
weighted equally in the safety rating methodology. Giving each of the
six factors equal weight is an attempt to balance the safety
significance of the regulations, except that the FHWA believes it is
appropriate to increase the point value for patterns of noncompliance
with ``critical'' regulations relating to Part 395. Otherwise, the FHWA
intends to retain the equal weight of the six factor ratings.
Regarding some comments suggesting more or less relationship
between enforcement and rating factors, the FHWA believes that
separating enforcement actions from safety ratings is appropriate. Both
are tools that are used to induce motor carriers to improve their
compliance with regulatory requirements. There will be instances where
a motor carrier has an enforcement action pending against it, and
appropriately has a satisfactory safety rating. An example of this is
where one terminal has a 15 percent violation rate for compliance with
Sec. 395.3 (a)(1), requiring or permitting driver to drive more than 10
hours. The motor carrier's overall violation rate may be seven percent
for compliance with Sec. 395.3(a)(1), which is satisfactory; however,
an enforcement action may be initiated against the carrier for its
terminal with the 15 percent violation rate. The FHWA believes this is
appropriate as the carrier's overall compliance is satisfactory yet it
has a significant noncompliance problem at one terminal with a 15
percent violation rate for noncompliance with Sec. 395.3(a)(1).
Future Direction
Today's NPRM is necessary to meet the FHWA's obligation under 49
U.S.C. Sec. 31144, as interpreted by the court in MST v. DOT, to
prescribe regulations establishing a procedure to decide on the safety
fitness of owners and operators of commercial motor vehicles, which
shall include--
(A) specific initial and continuing requirements to be met by the
owners, operators, and persons to prove safety fitness;
(B) a means of deciding whether the owners, operators, and persons
meet the safety fitness requirements of clause (A) of this paragraph;
and
(C) specific time deadlines for action by the Secretary in making
fitness determinations.
The FHWA believes incorporation of the SFRM and the other
amendments to Part 385 proposed herein will meet that obligation. It is
now soliciting further comments on the SFRM as an appendix to Part 385
for use in determining a motor carrier's safety fitness, the proposed
change to the accident factor, as well as on the other minor changes
proposed to be made to Part 385 itself.
The FHWA views this proposed action as a short-term approach. For
the long term, the FHWA is moving toward a more performance-based means
of determining when it is that carriers are not fit to conduct
commercial motor vehicle operations safely in interstate commerce.
Under legislative direction in the Intermodal Surface
Transportation and Efficiency Act of 1991, the FHWA has been conducting
pilots in five States to determine the feasibility of relating safety
performance to vehicle registrations. This has led to the development
of a system of data collection, called Safestat, which incorporates all
the safety information known about motor carriers and produces a
relative ranking of each carrier against all others similarly situated.
Within the next year or two, the FHWA believes the system will have
reached the point where it can be successfully employed to identify the
worst performing carriers. The system is presently used to identify
problem carriers and prioritize them for CRs.
Several sections in part 385 are proposed to be amended to correct
previous technical errors. The definition of ``Safety review'' in
section 385.3 would be removed since the Safety Review was discontinued
as of October 1, 1994. The definition of Conditional safety rating in
section 385.3 would be revised to ``ensure compliance with the safety
fitness standard that could result in occurrences listed in
Sec. 385.5(a) through (k).'' The definition of Unsatisfactory safety
rating would be revised to ``ensure compliance with the safety fitness
standard which has resulted in occurrences listed in Sec. 385.5(a)
through (k). Section 385.9 would be revised to include a subsection (b)
to meet the 49 U.S.C Sec. 31144(a)(C) requirement that there be
specific time deadlines for action by the Secretary in making fitness
decisions. Section 385.17 would be revised to ``conditionally suspend
the prohibition of operating with the unsatisfactory safety rating for
an additional period of up to 10 days.'' The current Appendix to Part
385 is changed to Appendix A in the interim final rule published
elsewhere in today's Federal Register. The revised Safety Rating
Process is added as Appendix B.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866. No
serious inconsistency or interference with another agency's actions or
plans is likely to result, and it is unlikely that this regulatory
action will have an annual effect on the economy of $100 million or
more. This Notice of proposed rulemaking rule is administrative in
nature in that it neither imposes new requirements upon the motor
carrier industry nor alters the August 16, 1991, interim final rule
implementing the provisions of 49 U.S.C. 5113. The FHWA does not
anticipate any new economic impacts as a result of this rulemaking.
This rule would not impose any costs on motor carriers in addition to
those assessed in the Regulatory Evaluation and Regulatory Flexibility
Analysis prepared in support of the 1988 final rule. (The 1991 interim
final amended the 1988 rule in ways that the FHWA believes had minimal
economic impact on motor carriers.)
The existing rating factors are used to evaluate the degree to
which the motor carrier complies with the regulations and add no costs
because the carrier is already required to comply. Compliance with
regulations, however, is only a surrogate for actual safety
performance. The addition of the accident factor introduced a direct
measure of performance into the equation. In 1988, this factor was not
considered as having a cost consequence because the effect of a
negative rating resulting from substantially higher accidents than the
[[Page 28831]]
norm would be virtually identical to the impact on the carrier's
business that would flow from public knowledge of its poor safety
performance.
The impact resulting from a negative rating generally relates to
knowledge of the rating by a shipper or insurer. If those same entities
know of the unusually high accident rate, the FHWA believes the
consequences would or should be approximately the same.
The instant proposal to consider all recordable accident instead of
only preventable recordable accidents would have the same sort of
impact. Nevertheless, the FHWA believes that this is a significant
regulatory action within the meaning of the Department of
Transportation's regulatory policies and procedures because it expects
that there will be significant public interest in this action.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small entities
and has determined that it would not have a significant economic impact
on a substantial number of small entities. The motor carriers
economically impacted by this rulemaking will be those who are rated as
unsatisfactory, and fail to take appropriate actions to have their
rating upgraded. In the past, relatively few small motor carriers had
been affected by the statutory consequences of an unsatisfactory, and
there is no reason to believe that those impacts will increase in any
way by this action.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this rulemaking does not have sufficient Federalism implications
to warrant the preparation of a Federalism assessment. These safety
requirements do not directly preempt any State law or regulation, and
no additional costs or burdens would be imposed on the States as a
result of this action. Furthermore, the State's ability to discharge
traditional State governmental functions would not be affected by this
rulemaking.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
This action does not contain a collection of information
requirement for the purposes of the Paperwork Reduction Act of 1995, 44
U.S.C. 3501-3520.
National Environmental Policy Act
The agency has analyzed this rulemaking for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that this action would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 385
Highway safety, Highways and roads, Motor carriers, Motor vehicle
safety, and Safety fitness procedures.
Issued on: May 21, 1997.
Jane F. Garvey,
Acting Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to amend title
49, Code of Federal Regulations, Chapter III, Part 385 as set forth
below:
PART 385--SAFETY FITNESS PROCEDURES
1. The authority citation for part 385 continues to read as
follows:
Authority: 49 U.S.C. 104, 504, 521(b)(5)(A), 5113, 31136, 31144,
and 31502; 49 CFR 1.48.
2. In Sec. 385.3, under the definition ``Reviews'', remove and
reserve paragraph ``(2) Safety review''; and under the definition
``Safety ratings'', revise paragraphs ``(2) Conditional safety rating''
and ``(3) Unsatisfactory safety rating'' to read as follows:
Sec. 385.3 Definitions.
* * * * *
Reviews. * * *
(1) * * *
(2) [Reserved]
(3) * * *
Safety ratings: (1) * * *
(2) Conditional safety rating means a motor carrier does not have
adequate safety management controls in place to ensure compliance with
the safety fitness standard that could result in occurrences listed in
Secs. 385.5 (a) through (k).
(3) Unsatisfactory safety rating means a motor carrier does not
have adequate safety management controls in place to ensure compliance
with the safety fitness standard which has resulted in occurrences
listed in Secs. 385.5 (a) through (k).
* * * * *
3. Section 385.9 is amended by designating the current undesignated
text as paragraph (a), and by adding paragraph (b) to read as follows:
Sec. 385.9 Determination of a safety rating.
(a) * * *
(b) Unless otherwise specifically provided in this chapter, a
safety rating will be issued to a motor carrier within 30 days
following the completion of a compliance review.
4. Section 385.17 is amended by revising paragraph (c) to read as
follows:
Sec. 385.17 Request for a change in a safety rating; corrective action
taken.
* * * * *
(c) In cases where the FHWA is unable to make a determination
within the 45-day period established in Sec. 385.13 and the motor
carrier has submitted evidence that corrective actions have been taken
pursuant to paragraph (a) of this section, and has cooperated in any
investigation, the FHWA may conditionally suspend the prohibition of
operating with the unsatisfactory safety rating for an additional
period of up to 10 days.
5. Part 385 is amended by designating the existing appendix as
appendix A, and by adding appendix B to read as follows:
Appendix B To Part 385--Safety Rating Process
Section 215 of the Motor Carrier Safety Act of 1984 (49 U.S.C.
31144) directed the Secretary of Transportation, in cooperation with
the Interstate Commerce Commission, to establish a procedure to
determine the safety fitness of owners and operators of commercial
motor vehicles operating in interstate or foreign commerce. The
Secretary, in turn, delegated this responsibility to the Federal
Highway Administration (FHWA).
As directed, FHWA promulgated a safety fitness regulation,
entitled ``Safety Fitness Procedures'', which established a
procedure to determine the safety fitness of motor carriers through
the assignment of safety ratings and established a ``safety fitness
standard'' which a motor carrier must meet to obtain a satisfactory
safety rating.
To meet the safety fitness standard, a motor carrier must
demonstrate to FHWA that it has adequate safety management controls
in
[[Page 28832]]
place which function effectively to ensure acceptable compliance
with the applicable safety requirements. A ``safety fitness rating
methodology'' (SFRM) was developed by the FHWA, which uses data from
compliance reviews (CRs) to rate motor carriers.
The safety rating process developed by FHWA's Office of Motor
Carriers is used to:
1. Evaluate safety fitness and assign one of three safety
ratings (satisfactory, conditional or unsatisfactory) to motor
carriers operating in interstate commerce. This process conforms
with 49 CFR 385.5--Safety fitness standard and Sec. 385.7--Factors
to be considered in determining a safety rating.
2. Identify motor carriers needing improvement in their
compliance with the Federal Motor Carrier Safety Regulations
(FMCSRs) and applicable Hazardous Material Regulations (HMRs). These
are carriers rated unsatisfactory or conditional.
Source of Data for Rating Methodology
The FHWA's rating process is built upon the operational tool
known as the CR. This tool was developed to assist Federal and State
safety specialists in gathering pertinent motor carrier compliance
and accident information.
The CR is an in-depth examination of a motor carrier's
operations and is used (1) to rate unrated motor carriers, (2) to
conduct a follow-up investigation on motor carriers rated
unsatisfactory or conditional as a result of a previous review, (3)
to investigate complaints, or (4) in response to a request by a
motor carrier to reevaluate its safety rating. Documents such as
those contained in driver qualification files, records of duty
status and vehicle maintenance records are thoroughly examined for
compliance with the FMCSRs and HMRs. Violations are cited on the CR
document. Performance based information, when available, is utilized
to evaluate the carrier's compliance with the vehicle regulations.
Recordable accident information is also collected.
Converting CR Information Into a Safety Rating
The FHWA gathers information through an in-depth examination of
the motor carrier's compliance with identified ``acute'' or
``critical'' regulations of the FMCSRs and HMRs.
Acute are those identified regulations, where noncompliance is
so severe to require immediate corrective actions by a motor carrier
regardless of the overall safety posture of the motor carrier. An
example of an acute regulation is Sec. 383.37(b)--Allowing,
requiring, permitting, or authorizing an employee with more than one
Commercial Driver's License (CDL) to operate a commercial motor
vehicle. Noncompliance with Sec. 383.37(b) is usually discovered
when the motor carrier's driver qualification file reflects that the
motor carrier had knowledge of a driver with more than one CDL, and
still permitted the driver to operate a commercial motor vehicle. If
the motor carrier did not have knowledge or could not reasonably be
expected to have knowledge, then a violation would not be cited.
Critical are those identified regulations, where noncompliance
relates to management and/or operational controls. Noncompliance
with these regulations is indicative of a breakdown in a carrier's
management controls. An example of a critical regulation is
Sec. 395.3(a)(1)--Requiring or permitting a driver to drive more
than 10 hours.
The list of the acute and critical regulations which are used in
determining safety ratings is included at the end of this document.
Noncompliance with acute regulations and patterns of
noncompliance with critical regulations are quantitatively linked to
inadequate safety management controls and usually higher than
average accident rates. The FHWA has used noncompliance with acute
regulations and patterns of noncompliance with critical regulations
since 1989 to determine motor carriers' adherence to the
Sec. 385.5--Safety fitness standard. Compliance with regulatory
factors (1) Parts 387, & 390, (2) Parts 382, 383 & 391, (3) Parts
392 & 395, (4) Parts 393 & 396, when there are less than three
vehicle inspections in the last 12 months to evaluate, and (5) Parts
397, 171, 177 & 180, will be evaluated as follows:
For each instance of noncompliance with an acute regulation or
each pattern of noncompliance with a critical regulation during the
CR, one point will be assessed. A pattern is more than one
violation. When large numbers of documents are reviewed the number
of violations required to meet a pattern is equal to at least 10
percent of those examined.
However, each pattern of noncompliance with a critical
regulation relative to Part 395, Hours of Service of Drivers, will
be assessed two points.
Vehicle Factor
When there are a combination of three or more inspections
recorded in the Motor Carrier Management Information System (MCMIS)
during the twelve months prior to the CR or performed at the time of
the review, the Vehicle Factor (Parts 393 & 396) will be evaluated
on the basis of the Out-of-Service (OOS) rates and noncompliance
with acute regulations and/or a pattern of noncompliance with
critical regulations. The results of the review of the OOS rate will
affect the Vehicle Factor rating as follows:
1. If a motor carrier has three or more roadside vehicle
inspections in the twelve months prior to the carrier review, or
three vehicles inspected at the time of the review, or a combination
of the two totaling three or more, and the vehicle OOS rate is 34%
or greater, the initial factor rating will be conditional. The
requirements of Part 396--Inspection, Repair, and Maintenance, will
be examined during each review. The results of the examination could
lower the factor rating to unsatisfactory if noncompliance with an
acute regulation or a pattern of noncompliance with critical
regulation is discovered. If the examination of the Part 396
requirements reveals no such problems with the systems the motor
carrier is required to maintain for compliance, the Vehicle Factor
remains conditional.
2. If a carrier's vehicle OOS rate is less than 34%, the initial
factor rating will be satisfactory. If noncompliance with an acute
regulation or a pattern of noncompliance with a critical regulation
is discovered during the examination of Part 396 requirements, the
factor rating will be lowered to conditional. If the examination of
Part 396 requirements discovers no such problems with the systems
the motor carrier is required to maintain for compliance, the
Vehicle Factor remains satisfactory.
Nearly two million vehicle inspections occur on the roadside
each year. This vehicle inspection information is retained in the
MCMIS and is integral to evaluating motor carriers' ability to
successfully maintain their vehicles. Since many of the roadside
inspections are targeted to visibly defective vehicles and since
there are a limited number of inspections for many motor carriers,
the use of that data is limited. Each CR will continue to have the
requirements of Part 396-Inspection, Repair, and Maintenance,
reviewed as indicated by the above explanation.
Accident Factor
In addition to the five regulatory rating factors, a sixth
factor is included in the process to address the accident history of
the motor carrier. This factor is the recordable accident rate which
the carrier has experienced during the past 12 months. Recordable
accident means an accident involving a commercial motor vehicle
operating on a public road in interstate or intrastate commerce
which results in a fatality; bodily injury to a person who, as a
result of the injury, immediately receives medical treatment away
from the scene of the accident; one or more motor vehicles incurring
disabling damage as a result of the accident requiring the motor
vehicle to be transported away from the scene by a tow truck or
other motor vehicle.
The recordable accidents per million miles were computed for
each CR performed in Fiscal Year 1995. The national average for all
carriers rated was 0.812, and 1.029 for carriers operating entirely
within the 100 air mile radius.
Experience has shown that those motor carriers operating
primarily in less than a 100 air mile radius (normally in urban
areas) have a higher exposure to accident situations because of
their environment and normally have higher accident rates.
The recordable accident rate will be used to rate Factor 6,
Accident. It will be used only when a motor carrier incurs two or
more recordable accidents within the 12 months prior to the CR. An
urban carrier (a carrier operating entirely within the 100 air mile
radius) with a recordable accident rate greater than 2.1 will
receive an unsatisfactory rating for the accident factor. All other
carriers with a recordable accident rate greater than 1.6 will
receive an unsatisfactory factor rating. The rates are a result of
doubling the national average accident rate for all carriers rated
in Fiscal Year 1995.
Factor Ratings
In the methodology, parts of the FMCSRs and the HMRs having
similar characteristics are combined together into five regulatory
areas called ``factors.''
[[Page 28833]]
The following table shows the five regulatory factors, parts of
the FMCSRs and HMRs associated with each factor, and the accident
factor.
Factors
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Factor 1........................... General............... = Parts 387 and 390.
Factor 2........................... Driver................ = Parts 382, 383 and 391.
Factor 3........................... Operational........... = Parts 392 and 395.
Factor 4........................... Vehicle............... = Parts 393 and 396.
Factor 5........................... Haz. Mat.............. = Parts 397, 171, 177 and 180.
Factor 6........................... Accident Factor....... = Recordable Rate.
----------------------------------------------------------------------------------------------------------------
Factor Ratings are determined as follows:
``Satisfactory''--if the acute and/or critical = 0 points
``Conditional''--if the acute and/or critical = 1 point
``Unsatisfactory''--if the acute and/or critical = 2 or more points
Safety Rating
The ratings for the six factors are then entered into a rating
table which establishes the motor carrier's safety rating.
The FHWA has developed a computerized rating formula for
assessing the information obtained from the CR document and is using
that formula in assigning a safety rating.
Motor Carrier Safety Rating Table
------------------------------------------------------------------------
Factor ratings
------------------------------------------------- Overall safety rating
Unsatisfactory Conditional
------------------------------------------------------------------------
0............................. 2 or less....... Satisfactory.
0............................. More than 2..... Conditional.
1............................. 2 or less....... Conditional.
1............................. More than 2..... Unsatisfactory.
2 or more..................... 0 or more....... Unsatisfactory.
------------------------------------------------------------------------
Anticipated Safety Rating
The anticipated (emphasis added) safety rating will appear on
the CR.
The following appropriate information will appear after the last
entry on the CR, MCS-151, Part B.
``It is anticipated the official safety rating from Washington,
D.C. will be SATISFACTORY.''
or
``It is anticipated the official safety rating from Washington,
D.C. will be CONDITIONAL. The safety rating will become effective
thirty days from the date of the CR.''
or
``It is anticipated the official safety rating from Washington,
D.C., will be UNSATISFACTORY. The safety rating will become
effective thirty days from the date of the CR.''
Assignment of Rating/Motor Carrier Notification
When the official rating is determined in Washington, D.C., the
FHWA notifies the motor carrier in writing of its safety rating as
prescribed in Sec. 385.11. An anticipated safety rating which is
higher than the existing rating becomes effective as soon as the
official safety rating from Washington, D.C. is issued. Notification
of a conditional or unsatisfactory rating includes a list of those
Parts of the regulations, or recordable accident rate for which
corrective actions must be taken by the motor carrier to improve its
overall safety performance.
Motor Carrier Procedural Rights
Under Secs. 385.15 and 385.17, motor carriers have the right to
petition for a review of their ratings if there are factual or
procedural disputes, and to request another review after corrective
actions have been taken.
Conclusion
The FHWA believes this ``safety rating methodology'' is a
reasonable approach for assigning a safety rating which best
describes the current safety fitness posture of a motor carrier as
required by the safety fitness regulations (Section 385.9).
Improved compliance with the regulations leads to an improved
rating, which in turn increases safety. This increased safety is our
regulatory goal.
List of Acute and Critical Regulations
Sec. 382.115(c) Failing to implement an alcohol and/or controlled
substance testing program. (acute)
Sec. 382.201 Using a driver who has an alcohol concentration of
0.04 or greater. (acute)
Sec. 382.211 Using a driver who has refused to submit to an alcohol
controlled substances test required under Part 382. (acute)
Sec. 382.213(b) Using a driver who has used a controlled substance.
(acute)
Sec. 382.215 Using a driver who has tested positive for a
controlled substance. (acute)
Sec. 382.301(a) Failing to require driver to undergo pre-employment
controlled substance testing. (critical)
Sec. 382.303(a) Failing to conduct post accident testing on driver
for alcohol and/or controlled substances. (critical)
Sec. 382.305 Failing to implement a random controlled substances
and/or an alcohol testing program. (acute)
Sec. 382.305(b)(1) Failing to conduct random alcohol testing at an
annual rate of not less than 25 percent of the average number of
driver positions. (critical)
Sec. 382.305(b)(2) Failing to conduct random controlled substances
testing at an annual rate of not less than 50 percent of the average
number of driver positions. (critical)
Sec. 382.309(a) Using a driver who has not undergone a return-to-
duty alcohol test with a result indicating an alcohol concentration
of less than 0.02. (acute)
Sec. 382.309(b) Using a driver who has not undergone a return-to-
duty controlled substances test with a result indicating a verified
negative result for controlled substances. (acute)
Sec. 382.503 Driver performing safety sensitive function, after
engaging in conduct prohibited by Subpart B, without being evaluated
by substance abuse professional, as required by Sec. 382.605.
(critical)
Sec. 382.505(a) Using a driver within 24 hours after being found to
have an alcohol concentration of 0.02 or greater but less than 0.04.
(acute)
[[Page 28834]]
Sec. 382.605(c)(1) Using a driver who has not undergone a return-
to-duty alcohol test with a result indicating an alcohol
concentration of less than .02 or with verified negative test
result, after engaging in conduct prohibited by Part 382 Subpart B.
(acute)
Sec. 382.605(c)(2)(ii) Failing to subject a driver who has been
identified as needing assistance to at least six unannounced follow-
up alcohol and controlled substance tests in the first 12 months
following the driver's return to duty. (critical)
Sec. 383.23(a) Operating a commercial motor vehicle without a valid
commercial driver's license. (critical)
Sec. 383.37(a) Allowing, requiring, permitting, or authorizing an
employee with a Commercial Driver's License which is suspended,
revoked, or canceled by a state or who is disqualified to operate a
commercial motor vehicle. (acute)
Sec. 383.37(b) Allowing, requiring, permitting, or authorizing an
employee with more than one Commercial Driver's License to operate a
commercial motor vehicle. (acute)
Sec. 383.51(a) Allowing, requiring, permitting, or authorizing a
driver to drive who is disqualified to drive a commercial motor
vehicle. (acute)
Sec. 387.7(a) Operating a motor vehicle without having in effect
the required minimum levels of financial responsibility coverage.
(acute)
Sec. 387.7(d) Failing to maintain at principal place of business
required proof of financial responsibility. (critical)
Sec. 387.31(a) Operating a passenger carrying vehicle without
having in effect the required minimum levels of financial
responsibility. (acute)
Sec. 387.31(d) Failing to maintain at principal place of business
required proof of financial responsibility for passenger vehicles.
(critical)
Sec. 390.15(b)(2) Failing to maintain copies of all accident
reports required by State or other governmental entities or
insurers. (critical)
Sec. 390.35 Making, or causing to make fraudulent or intentionally
false statements or records and/or reproducing fraudulent records.
(acute)
Sec. 391.11(a)/391.95 Using an unqualified driver, a driver who has
tested positive for controlled substances, or refused to be tested
as required. (acute)
Sec. 391.11(b)(6) Using a physically unqualified driver. (acute)
Sec. 391.15(a) Using a disqualified driver. (acute)
Sec. 391.45(a) Using a driver not medically examined and certified.
(critical)
Sec. 391.45(b) Using a driver not medically examined and certified
each 24 months. (critical)
Sec. 391.51(a) Failing to maintain driver qualification file on
each driver employed. (critical)
Sec. 391.51(b)(1) Failing to maintain medical examiner's
certificate in driver's qualification file. (critical)
Sec. 391.51(c)(1) Failing to maintain medical examiner's
certificate in driver's qualification file. (critical)
Sec. 391.51(c)(3) Failing to maintain inquiries into driver's
driving record in driver's qualification file. (critical)
Sec. 391.51(d)(1) Failing to maintain medical examiner's
certificate in driver's qualification file. (critical)
Sec. 391.87(f)(5) Failing to retain in the driver's qualification
file test finding, either ``Negative'' and, if ``Positive'', the
controlled substances identified. (critical)
Sec. 391.93(a) Failing to implement a controlled substances testing
program. (acute)
Sec. 391.99(a) Failing to require a driver to be tested for the use
of controlled substances, upon reasonable cause. (acute)
Sec. 391.103(a) Failing to require a driver-applicant whom the
motor carrier intends to hire or use to be tested for the use of
controlled substances as a pre-qualification condition. (critical)
Sec. 391.109(a) Failing to conduct controlled substance testing at
a 50% annualized rate. (critical)
Sec. 391.115(c) Failing to ensure post-accident controlled
substances testing is conducted and conforms with 49 CFR Part 40.
(critical)
Sec. 392.2 Operating a motor vehicle not in accordance with the
laws, ordinances, and regulations of the jurisdiction in which it is
being operated. (critical)
Sec. 392.4(b) Requiring or permitting a driver to drive while under
the influence of, or in possession of, a narcotic drug, amphetamine,
or any other substance capable of rendering the driver incapable of
safely operating a motor vehicle. (acute)
Sec. 392.5(b)(1) Requiring or permitting a driver to drive a motor
vehicle while under the influence of, or in possession of, an
intoxicating beverage. (acute)
Sec. 392.5(b)(2) Requiring or permitting a driver who has consumed
an intoxicating beverage within 4 hours to operate a motor vehicle.
(acute)
Sec. 392.6 Scheduling a run which would necessitate the vehicle
being operated at speeds in excess of those prescribed. (critical)
Sec. 392.9(a)(1) Requiring or permitting a driver to drive without
the vehicle's cargo being properly distributed and adequately
secured. (critical)
Sec. 395.1(i)(1)(i) Requiring or permitting a driver to drive more
than 15 hours. (Driving in Alaska.) (critical)
Sec. 395.1(i)(1)(ii) Requiring or permitting a driver to drive
after having been on duty 20 hours. (Driving in Alaska.) (critical)
Sec. 395.1(i)(1)(iii) Requiring or permitting driver to drive after
having been on duty more than 70 hours in 7 consecutive days.
(Driving in Alaska.) (critical)
Sec. 395.1(i)(1)(iv) Requiring or permitting driver to drive after
having been on duty more than 80 hours in 8 consecutive days.
(Driving in Alaska.) (critical)
Sec. 395.3(a)(1) Requiring or permitting driver to drive more than
10 hours. (critical)
Sec. 395.3(a)(2) Requiring or permitting driver to drive after
having been on duty 15 hours. (critical)
Sec. 395.3(b) Requiring or permitting driver to drive after having
been on duty more than 60 hours in 7 consecutive days. (critical)
Sec. 395.3(b) Requiring or permitting driver to drive after having
been on duty more than 70 hours in 8 consecutive days. (critical)
Sec. 395.8(a) Failing to require driver to make a record of duty
status. (critical)
Sec. 395.8(e) False reports of records of duty status. (critical)
Sec. 395.8(l) Failing to require driver to forward within 13 days
of completion, the original of the record of duty status. (critical)
Sec. 395.8(k)(1) Failing to preserve driver's record of duty status
for 6 months. (critical)
Sec. 395.8(k)(1) Failing to preserve driver's records of duty
status supporting documents for 6 months. (critical)
Sec. 396.3(b) Failing to keep minimum records of inspection and
vehicle maintenance. (critical)
Sec. 396.9(c)(2) Requiring or permitting the operation of a motor
vehicle declared ``out-of-service'' before repairs were made.
(acute)
Sec. 396.11(a) Failing to require driver to prepare driver vehicle
inspection report. (critical)
Sec. 396.11(c) Failing to correct Out-of-Service defects listed by
driver in a driver vehicle inspection report. (acute)
Sec. 396.17(a) Using a commercial motor vehicle not periodically
inspected. (critical)
Sec. 396.17(g) Failing to promptly repair parts and accessories not
meeting minimum periodic inspection standards. (acute)
Sec. 397.5(a) Failing to ensure a motor vehicle containing Class A
or B explosives, (Class 1.1, 1.2, or 1.3) is attended at all times
by its driver or a qualified representative. (acute)
Sec. 397.7(a)(1) Parking a motor vehicle containing Class A or B
explosives (1.1, 1.2, 1.3) within 5 feet of traveled portion of
highway. (critical)
Sec. 397.7(b) Parking a motor vehicle containing hazardous
material(s) within 5 feet of traveled portion of highway or street.
(critical)
Sec. 397.13(a) Permitting a person to smoke or carry a lighted
cigarette, cigar or pipe within 25 feet of a motor vehicle
containing explosives, oxidizing materials, or flammable materials.
(critical)
Sec. 397.19(a) Failing to furnish driver of motor vehicle
transporting Class A or B explosives (Class 1.1, 1.2, 1.3) with a
copy of the rules of Part 397 and/or emergency response
instructions. (critical)
Sec. 397.67(d) Requiring or permitting the operation of a motor
vehicle containing Division 1.1, 1.2, or 1.3 (explosive) material
that is not accompanied by a written route plan. (critical)
[[Page 28835]]
Sec. 171.15 Carrier failing to give immediate telephone notice of
an incident involving hazardous materials. (critical)
Sec. 171.16 Carrier failing to make a written report of an incident
involving hazardous materials. (critical)
Sec. 177.800(a) Failing to instruct a category of employees in
hazardous materials regulations. (critical)
Sec. 177.817(a) Transporting a shipment of hazardous materials not
accompanied by a properly prepared shipping paper. (critical)
Sec. 177.817(e) Failing to maintain proper accessibility of
shipping papers. (critical)
Sec. 177.823(a) Moving a transport vehicle containing hazardous
material that is not properly marked or placarded. (critical)
Sec. 177.841(e) Transporting a package bearing a poison label in
the same transport vehicle with material marked or known to be
foodstuff, feed, or any edible material intended for consumption by
humans or animals. (acute)
Sec. 180.407(a) Transporting a shipment of hazardous material in
cargo tank that has not been inspected or retested in accordance
with Sec. 180.407. (critical)
Sec. 180.407(c) Failing to periodically test and inspect a cargo
tank. (critical)
Sec. 180.417 Failing to mark a cargo tank which passed an
inspection or test required by Sec. 180.407. (critical)
Sec. 180.417(a)(1) Failing to retain cargo tank manufacturer's data
report certificate and related papers, as required. (critical)
Sec. 180.417(a)(2) Failing to retain copies of cargo tank
manufacturer's certificate and related papers (or alternative
report) as required. (critical)
[FR Doc. 97-13873 Filed 5-27-97; 8:45 am]
BILLING CODE 4910-22-P
