[Federal Register Volume 64, Number 157 (Monday, August 16, 1999)]
[Proposed Rules]
[Pages 44460-44470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20905]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Parts 385 and 390
[FHWA Docket No. FHWA-99-5467]
RIN 2125-AE56
Safety Fitness Procedures
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: The FHWA proposes to implement section 4009 of the
Transportation Equity Act for the 21st Century (TEA-21) by amending the
safety fitness procedures of the Federal Motor Carrier Safety
Regulations. This action would prohibit all motor carriers found by the
Secretary to be unfit from operating commercial motor vehicles (CMVs)
in interstate commerce. The FHWA is proposing to treat an
unsatisfactory safety rating under the safety fitness procedure
regulations as a determination of unfitness. The FHWA also would revise
the listing for locations of motor carrier and highway safety field
offices to reflect recent changes to the Federal Highway Administration
organizational structure.
DATES: Comments must be received on or before September 15, 1999.
ADDRESSES: Your signed, written comments must refer to the docket
number appearing at the top of this document and you must submit the
comments to the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400
Seventh Street, SW., Washington, DC 20590-0001. All comments received
will be available for examination at the above address between 9 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: Ms. Deborah M. Freund or Mr. William
C. Hill, Office of Motor Carrier Research and Standards, (202) 366-
4009; or Mr. Charles E. Medalen, Office of the Chief Counsel, (202)
366-1354, Federal Highway Administration, 400 Seventh Street, SW.,
Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15
p.m., e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
Internet users may 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 each 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 Office of 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
Section 4009 of TEA-21 (Public Law 105-178, 112 Stat. 107, at 405,
June 9, 1998) amends 49 U.S.C. 31144 and requires the Secretary of
Transportation to maintain by regulation a procedure for determining
the safety fitness of an owner or operator [of commercial motor
vehicles (CMVs)]. The procedure shall include, at a minimum, the
following elements:
(1) Specific initial and continuing requirements with which an
owner or operator must comply to demonstrate safety fitness.
(2) A methodology the Secretary will use to determine whether an
owner or operator is fit.
(3) Specific time frames within which the Secretary will determine
whether an owner or operator is fit. 49 U.S.C. 31144(b).
Because these provisions are very similar to the previous 49 U.S.C.
31144(a)(1), which was enacted by section 215 of the Motor Carrier
Safety Act (MCSA) of 1984 (Public Law 98-554, 98 Stat. 2832), the FHWA
regulations at 49 CFR parts 385 and 386 already include most of the
requirements listed above.
Section 4009 of TEA-21 introduced two important changes. First, it
transferred the substance of 49 U.S.C. 5113 to section 31144. Section
5113 codified section 15(b) of the MCSA of 1990 (Public Law 101-500,
104 Stat. 1213, 1218, November 3, 1990), which prohibited motor
carriers rated unsatisfactory from using CMVs to transport, in
interstate commerce, more than 15 passengers (including the driver) or
hazardous materials (HM) in quantities requiring placarding, starting
on the 46th day after the rating was issued. The regulation
implementing section 5113 has been in effect since 1991 (49 CFR
385.13). By attaching this prohibition to a regulatory standard already
used by the FHWA (i.e., unsatisfactory), Congress equated that rating
with a determination that
[[Page 44461]]
passenger and HM motor carriers were not fit to operate on the
highways.
Second, section 4009 of TEA-21 prohibits all owners and operators
of CMVs not previously subject to 49 U.S.C 5113--that is, those owners
and operators using CMVs to transport freight that does not include HM
in quantities requiring placarding--from using those vehicles in
interstate commerce starting on the 61st day after being found
``unfit.'' Also, Federal agencies are now prohibited from using those
owners and operators to provide interstate transportation.
Because 49 U.S.C. 31144(b), as amended by section 4009, provides
that ``[t]he Secretary shall maintain [emphasis added] by regulation a
procedure for determining the safety fitness of an owner or operator,''
the FHWA believes that Congress authorized the continued use of the
safety fitness rating regulation in effect on June 9, 1998, the date of
enactment of TEA-21, until the agency adopts a final rule based upon
this NPRM.
The parallelism between 49 U.S.C. 31144(c)(2) and (3) and the
previous 49 U.S.C. 31144(a)(1) leads the FHWA to believe that Congress
intended section 4009 to authorize the application of the principles
embodied in section 15(b) of the MCSA of 1990 to the entire range of
motor carriers that operate CMVs in interstate commerce. The only
difference is that carriers of general freight would have 60 days,
while passenger and HM carriers have 45 days, after the FHWA makes a
determination of ``unfitness'' in which to improve or cease operations.
Because the MCSA of 1990 explicitly referred to the three-part rating
scheme used by the FHWA (satisfactory, conditional, unsatisfactory) and
directed the FHWA to prohibit unsatisfactory rated motor carriers from
transporting passengers and HM after the 45 day period, the FHWA has
concluded that the functionally equivalent, though not identical,
requirements of section 4009 authorize, but do not require, the FHWA to
continue using its current safety fitness rating standards and
methodology. The FHWA is therefore proposing to use an unsatisfactory
rating assigned under the Safety Fitness Rating Methodology (SFRM) in
part 385 as a determination of ``unfitness.'' This policy is congruent
with that of section 15(b) of the MCSA of 1990. There is nothing in the
legislative history concerning section 4009 of TEA-21 that suggests the
FHWA should implement a different approach.
The proposed prohibition on the operation of CMVs would not be
applied retroactively. Passenger and HM carriers rated unsatisfactory
would have either improved their ratings since 1991 or ceased operating
in interstate commerce. However, there were significant numbers of
general freight carriers that held unsatisfactory ratings at the time
TEA-21 was enacted; their operations were not illegal. The prohibition
on unfit/unsatisfactory general freight carriers in section 4009 must
be understood as applying only to those rated unsatisfactory by the
FHWA after the effective date of a final rule generated by this
proceeding. However, if a motor carrier that had been rated
unsatisfactory prior to the effective date of the final rule received
another unsatisfactory rating after the effective date of the final
rule as a result of another compliance review, the new provisions would
apply and the motor carrier would be required to cease its operations
in interstate commerce within 60 days.
Section 4009 also specifies time periods for the FHWA to perform a
compliance review requested by an unfit (i.e., unsatisfactory) rated
motor carrier. For unsatisfactory carriers of passengers and HM, the
follow-up compliance review must be completed within 30 days of the
carrier's request; for all other carriers rated unsatisfactory, the
follow-up review must be completed within 45 days after the carrier's
request.
Under this proposal, the FHWA would continue to perform
administrative reviews under Sec. 385.15 and corrective-action reviews
under Sec. 385.17 for motor carriers regardless of their projected or
final safety rating. The current Sec. 385.15(d) states that the FHWA
will notify a petitioning motor carrier of the agency's decision on
administrative review within 30 days after the agency receives a
petition. The current Sec. 385.17 does not specify a time limit for the
FHWA to perform a review based upon a motor carrier's request to change
a safety rating because of its corrective actions, but it does allow
the agency to extend the period before a proposed safety rating becomes
effective for up to 10 days (Sec. 385.17(d)). The agency is proposing
to revise its regulations and procedures, now to be codified at
Secs. 385.15(c) and 385.17(e), to give priority to reviews of motor
carriers with proposed or final unsatisfactory safety ratings because
of the prohibition against operating in interstate commerce with such
safety ratings.
This priority handling would not extend to non-passenger and non-HM
motor carriers with unsatisfactory safety ratings that became final
before the effective date of the final rule because the regulation
would not be retroactive. Although the FHWA would continue to review
proposed and final conditional safety ratings, the agency needs to
place a higher priority on the proposed and final unsatisfactory safety
ratings because of the severe operational consequences for the affected
motor carriers. However, as explained above, if a motor carrier of non-
HM freight that held an unsatisfactory safety rating issued prior to
the effective date of a final rule were to receive a follow-up proposed
unsatisfactory rating after the effective date of a final rule, the
FHWA would provide those motor carriers the same priority handling as
motor carriers receiving a proposed unsatisfactory safety rating for
the first time.
The DOT Office of Inspector General (OIG) has observed that
unsatisfactory motor carriers of non-HM freight may continue to operate
in interstate commerce under the current regulations. These motor
carriers may continue to operate under the proposed regulations unless
they were to receive another unsatisfactory rating after the effective
date of a final rule. The OIG also contends that some motor carriers of
HM freight or of passengers continue to operate despite their
unsatisfactory safety ratings, and are doing so illegally. The FHWA
intends to carefully track the safety of operations of the first group
to ensure that the traveling public is not exposed to increased risk
from a motor carrier's operation that has been documented to have
fallen below an acceptable level of safety. The agency will bring swift
and appropriate enforcement actions against motor carriers that are
operating in spite of having been directed to cease their operations in
interstate commerce.
Rating Criteria
In the preamble of the 1997 final rule amending 49 CFR part 385 (62
FR 60035), the FHWA announced that it intended to review the entire
rating system. On July 20, 1998, the agency published an advance notice
of proposed rulemaking (ANPRM) which, among other things, began the
process of creating a more performance-based means of determining the
safety fitness of motor carriers (63 FR 38788). The FHWA is reviewing
the comments to that docket, along with the possibility and
practicality of incorporating alternative safety fitness information
that would improve the effectiveness of the rating system. For the
present, however, the FHWA is proposing to continue using the current
SFRM included in appendix B to part 385 until it is ready to propose
the elements of a revised process.
[[Page 44462]]
The American Trucking Associations (ATA) and Truckers United for
Safety had challenged the decision in the 1997 final rule to use an
amended version of the FHWA's SFRM that the agency uses to make safety
fitness determinations. That challenge was rejected by the U.S. Court
of Appeals for the District of Columbia Circuit in American Trucking
Associations, Inc. v. United States Department of Transportation, 166
F. 3d 374 (D.C. Cir. 1999).
The FHWA is continuing its efforts to increase the level of
reliable safety data and other information needed to create a more
performance-based means of determining a motor carrier's safety
fitness. The FHWA conducted a demonstration project, the Commercial
Vehicle Information System (CVIS), recently renamed the Performance and
Registration Information System Management (PRISM) Program. It also
produced a new safety risk assessment model, the Motor Carrier Safety
Status Measuring System (SAFESTAT). Both of these were described in the
ANPRM of July 20, 1998. The FHWA plans to expand PRISM to as many as
five new States this year. However, today's proposed rulemaking action
does not reach these issues.
Terms: ``Motor Carrier'' and ``Owner or Operator''
Prior to the 1998 TEA-21 amendment, 49 U.S.C. 31144 applied to
``owners and operators of commercial motor vehicles, including persons
seeking new or additional operating authority as motor carriers.'' As
amended, the section now refers to these entities as ``owner[s] or
operator[s]'' of commercial motor vehicles, but not ``motor carriers.''
Although no explanation is provided in the committee reports, the FHWA
believes this was done to cure an anomaly. Section 31144 was the only
section in 49 U.S.C. chapter 311 which used the term ``motor carrier;''
it was not included in the definitions in section 31132. The Motor
Carrier Safety Act of 1984, from which chapter 311 was derived, used
the jurisdictional term ``commercial motor vehicle.'' ``Motor carrier''
and ``motor private carrier'' were defined separately in those
provisions of title 49 of the United States Code administered by the
Interstate Commerce Commission; the definitions are now codified at 49
U.S.C. 13102. The FMCSRs have long treated owners and operators of CMVs
as ``motor carriers'' (see 49 CFR 390.5). The regulatory text of 49 CFR
part 385 would continue to use the term ``motor carrier'' as equivalent
to ``owners and operators'' specified by amended section 31144.
Effect of Rating
Since 1991, motor carriers receiving an unsatisfactory safety
rating from the FHWA have been prohibited from using CMVs to transport
more than 15 passengers, including the driver, or placardable
quantities of HM, in interstate commerce. Furthermore, those motor
carriers could not be used by Federal agencies. These prohibitions and
the procedures for applying them are contained in 49 CFR 385.13, which
implemented section 15(b) of the Motor Carrier Safety Act of 1990. The
TEA-21 provision expands the same prohibition, under virtually
identical conditions, to all other motor carriers, irrespective of
their cargo, which are found by the FHWA to be unfit. These owners and
operators may not operate CMVs in interstate commerce beginning on the
61st day after such fitness determination.
Despite the change in the language, nothing in the amending
provision would indicate any intention on the part of Congress to
require the FHWA to change the effect of an unsatisfactory rating
applied to a motor carrier of passengers or placardable HM. Although it
extends the prohibitions to all other motor carriers, section 4009 does
not require that another standard be applied. Consequently, the FHWA is
proposing to require all other motor carriers with a proposed
unsatisfactory safety rating to cease operations when that rating
becomes final. As is already the case with passenger and HM carriers,
these other motor carriers would be given an appropriate period of time
within which to improve that proposed rating.
Proposed Ratings; Effective Date of Final Rating
One of the changes to 49 CFR part 385 made in the November 6, 1997,
final rule was the adoption of a ``proposed'' safety rating. A motor
carrier is informed of its proposed rating at the end of a compliance
review. If the proposed rating is unsatisfactory, it becomes the final
rating 45 days later (if improvements are not forthcoming), and the
carrier must halt its transportation of passengers or HM on the 46th
day. The 45-day period after the proposed safety rating is announced
provides the motor carrier with an opportunity to assess its operations
and request the FHWA to reconsider the rating either because (1) it
believes the FHWA proposed an erroneous rating, or (2) the motor
carrier has taken corrective actions so that its operations meet the
safety standards and factors specified in Sec. 385.9 of the FMCSRs.
The FHWA adopted ``proposed'' ratings in 1997, and is retaining
them in this NPRM, in the interest of basic fairness to motor carriers.
Section 15(b) of the MCSA of 1990 and section 4009 of TEA-21 both
require carriers to cease interstate operations 45 or 60 days after
receiving an unsatisfactory rating or a determination of unfitness. A
final rating is public information which must be released under the
Freedom of Information Act (FOIA), Public Law 89-487, 80 Stat. 250, as
amended; in fact, the FHWA posts final ratings on its Safety and
Fitness Electronic Records System (SAFER) web site [http://
www.safersys.org] and makes them available through telephone inquiries
to (800) 832-5660. An unsatisfactory rating can have an almost
immediate impact on business once it becomes public, yet both the MCSA
and TEA-21 provide carriers a substantial grace period after an
unsatisfactory rating. In other words, the FOIA may defeat one of the
essential elements of the 1990 and 1998 amendments by subjecting
carriers to a serious, and potentially fatal, loss of business before
they have had a chance to improve their safety posture. The FHWA
believes the purposes of these statutes can best be reconciled by
issuing ``proposed'' unsatisfactory and conditional safety ratings
which are not releasable under the FOIA because they do not yet
constitute the agency's final decision. The FHWA requests comment,
however, on what harm would ensue if the ``proposed'' unsatisfactory
rating became public before a final unsatisfactory rating were to be
issued.
Under the rules proposed today, a motor carrier warned by the FHWA
that its proposed rating is unsatisfactory would have an opportunity in
the next 45 or 60 days to demonstrate its renewed commitment to safety
and regulatory compliance, or to argue that the FHWA made a mistake in
assigning that rating. A number of motor carriers have successfully
used the 45-day grace period to improve their ratings since the 1997
rule went into effect. But if no such improvements are forthcoming, the
carrier would be required to halt its CMV operations in interstate
commerce the day after an unsatisfactory rating becomes final (i.e., on
the 46th or 61st day after the carrier was notified of the proposed
safety rating). The agency would then post the final rating to the
SAFER web site and make it available by telephone. Although this
procedure requires carriers to shut down one day, rather than 46 or 61
days, after the final rating of unsatisfactory, the FHWA believes the
``proposed'' safety rating followed by a 45- or 60-day grace period
[[Page 44463]]
achieves the same purpose as, and is entirely consistent with, section
4009.
Subsection (c) of 49 U.S.C. 31144 also provides discretionary power
to the FHWA to allow unsatisfactory motor carriers that do not
transport passengers or HM to operate for an additional 60 days, if the
agency determines the motor carrier is making a good faith effort to
improve its safety fitness. As noted above, the FHWA would not make a
final determination of unfitness in its initial notification--the final
determination would occur at the end of the 45- or 60-day period.
Reiterating its commitment to highway safety, and responding to another
comment by the DOT OIG, the FHWA intends to continue to provide
careful, timely, and effective safety oversight of changes made by
these motor carriers as they attempt to improve their safety ratings
within the first 60-day period, and, if needed, during the second 60-
day period.
Section 31144(d) specifies the time limits for the FHWA to review
motor carriers' compliance with regulatory provisions that contributed
to the fitness determination. For motor carriers of passengers or HM,
the review must be performed within 30 days of the carrier's request.
For all other motor carriers, the FHWA must perform the review within
45 days of the carrier's request.
In the preamble to the August 16, 1991, interim final rule that
implemented the provisions of the MCSA of 1990 (56 FR 40801, at 40802),
the FHWA said it would ``make its determination expeditiously because
the `unsatisfactory' safety rating may well affect a motor carrier's
ability to continue in business. In the event the FHWA is unable to
make its determination within the 45-day period, the agency may
conditionally suspend any `unsatisfactory' safety rating and rescind
any related administrative order for a period of up to 10 additional
calendar days.'' The current regulation, at 49 CFR 385.17(d), continues
to allow for this additional time: ``If the motor carrier has submitted
evidence that corrective actions have been taken pursuant to this
section and a final determination cannot be made within the 45-day
period, the period before the proposed safety rating becomes effective
may be extended for up to 10 days at the discretion of the Regional
Director.'' The NPRM retains this provision (as Sec. 385.17(f)) because
there may be circumstances under which competing demands for FHWA staff
time would make it impossible to complete a review within the time
limit specified by the statute. The agency does not expect that to
happen frequently, but it does not wish to penalize motor carriers for
delays not of their own making. The extension would be allowed at the
discretion of the Enforcement Program Manager in the FHWA Resource
Center for the appropriate geographic area--the agency no longer has
Regional offices. The list of Resource Centers would appear under
Sec. 390.27.
Other Rating Issues
The FHWA does not currently issue safety ratings to two categories
of motor carriers of passengers: (1) Non-business private motor
carriers of passengers, such as churches or social groups, and (2)
owners and operators of vehicles designed to transport fewer than 16
passengers, including the driver, for compensation. As to the first
category, the FHWA does not believe that Congress intended the agency
to include this group, because the occasional nature of the
transportation these motor carriers provide does not readily lend
itself to safety fitness evaluation. These motor carriers are not
required to maintain most of the records otherwise mandated by the
FMCSRs. However, they are still subject to many of the substantive
regulations and to safety enforcement at roadside. The FHWA would
continue its practice of not issuing a safety rating to this type of
motor carrier.
The second category of passenger motor carrier is comprised mainly
of limousine and van owners and operators. These entities are currently
required to obtain operating authority from the FHWA, but are not
subject to most provisions of the FMCSRs because their vehicles do not
qualify as ``commercial motor vehicles'' under 49 CFR 390.5. However,
section 4008 of TEA-21 changed part of the statutory definition of
``commercial motor vehicle'' to include those designed or used to
transport ``more than 8 passengers (including the driver) for
compensation'' (49 U.S.C. 31132(1)(B)). Motor carriers operating such
vehicles would require safety fitness determinations. Most of the
FMCSRs (except parts 382, 383, 387, and a few other requirements)
became applicable to these smaller passenger vehicles on June 9, 1999.
The FHWA is considering exempting for six months the operation of these
small passenger-carrying vehicles from all of the FMCSRs, to allow time
for the completion of a rulemaking on that issue.
Motor Carriers With Less Than Satisfactory Safety Ratings
In its April 26, 1999 audit of the FHWA's motor carrier safety
program, the OIG recommended that the FHWA perform follow-up visits and
monitoring of those motor carriers with a lower than satisfactory
safety rating. The OIG recommended that these visits and monitoring
take place at varying intervals to ensure that safety improvements are
sustained, or if safety has deteriorated, that appropriate sanctions
are invoked. The FHWA has made a practice of monitoring the safety
performance of motor carriers under its regulatory jurisdiction, and to
place special compliance program emphasis upon those with performance
outcomes (such as accident rates and vehicles and drivers out-of-
service rates that exceed thresholds set according to the type and
volume of the operation) that indicate a potential safety problem. The
agency will continue to devote its resources to improve highway safety,
and will continue to work with its State partners toward this goal.
Docket Comments Concerning Section 4009
A few commenters to the July 20, 1998, ANPRM concerning safety
fitness procedures addressed issues related to section 4009 of TEA-21.
We summarize their comments here.
The Oregon Department of Transportation, Motor Carrier
Transportation Branch (Oregon), stated that motor carriers that pose an
imminent danger to the public or themselves should be prohibited from
operating. Oregon believes that 49 CFR 385.13 adequately addresses
unfit motor carriers of HM and passengers, and that the prohibition
that section 4009 would impose on other motor carriers should be
implemented by including additional performance-based data in the
rating methodology. That data might include driver citations, driver
out-of-service violations, and vehicle size and weight violations.
FHWA response. The FHWA will continue to use the authority in 49
U.S.C. 521(b)(5)(A) to deal with imminent hazards. (The implementing
regulation is codified at 49 CFR 386.72, and is not included in today's
rulemaking activity.) That authority is limited, however, to extreme
cases. The FHWA agrees that performance-based information, where
available, would be valuable in making safety fitness determinations.
We will address this issue in future rulemaking.
The Transportation Lawyers Association's Committee on Federal
Agency Practice criticized what it considered the FHWA's ``repetitive
rulemakings on the same issue without new rules being developed.'' It
also highlighted concerns with due process
[[Page 44464]]
because safety ratings entail severe economic ``punishment'' and the
data upon which ratings are based are allegedly so erroneous as to be
meaningless.
FHWA response. The FHWA described in detail its rulemaking actions,
and their background, in the July 20, 1998, ANPRM (63 FR 38788). The
safety rating process incorporates due-process protections in
Secs. 385.15 and 385.17. The agency believes these have proven to be
adequate. Finally, the FHWA is continually updating records and
improving the quality and effectiveness of the information in its Motor
Carrier Management Information System (MCMIS) database. The agency
continues to receive more timely and better quality data from its field
staff and its State partners.
The FHWA is continuing to assess its methods for assigning safety
ratings to motor carriers. The agency recognizes that the consequences
of an unsatisfactory safety rating are extremely serious for motor
carriers that cannot or will not improve their commitment to safety. We
acknowledge the need to exercise great care in reviewing information
that could result in an unsatisfactory rating, but the statutory
mandate is clear.
The American Trucking Associations (ATA) stated that it supported
Section 4009 of TEA-21, but went on to say:
We take issue, however, with how the agency has characterized
the Congressional mandate. In the subject notice, the agency states
that the prohibition on transportation should apply to carriers with
unsatisfactory ratings. In fact, the Act did not use the term
``unsatisfactory rating'' but instead deliberately used the term
``not fit to operate.'' * * * The industry believes this distinction
is an important one. As stated earlier, unsatisfactory compliance
does not always result in unsafe performance. In fact, some carriers
who have received unsatisfactory safety ratings under the current
system have acceptable accident rates. Instead, the term ``not fit
to operate'' should be reserved for carriers whose performance is so
poor that to allow them to continue to operate would be a certain
and substantial threat to highway safety. Specifically, carriers
with high accident rates who have failed to act on the opportunity
to improve should be placed in this category.
FHWA response. As discussed above, the FHWA believes this proposed
rule is consistent with the statutory mandate. Congress used the term
``unsatisfactory'' in the 1990 MCSA, and gave no indication that it
intended to require a different result in TEA-21. Even the 45-day grace
period for passenger and HM carriers was retained. Therefore, the
change in wording, from ``unsatisfactory'' in section 5113 to ``not
fit'' in section 31144, does not support the interpretation urged on
the agency by the ATA.
The National Tank Truck Carriers, Inc. (NTTC) believes the safety
rating system's fundamental purpose is to provide an alert to the
public, including shippers, of the shortcomings of unsafe motor
carriers. The NTTC also believes the enforcement community should give
priority attention to unsafe motor carriers: the more the rating system
``singles out'' the unsafe carrier, the more responsive it will be to
congressional intent.
Advocates for Highway and Auto Safety criticized what it considers
the FHWA's inadequate stewardship of motor carrier safety, but did not
offer any comment on the contents of section 4009.
FHWA response. In TEA-21, Congress provided the agency with
specific direction to prohibit all unfit motor carriers--not only
passenger and HM carriers--from operating in interstate commerce. As
indicated above, there is nothing in the statute or legislative history
of this provision which suggests that Congress intended to require the
FHWA to adopt a standard for evaluating ``fitness'' that differs from
the current safety rating system in Part 385.
The Department of California Highway Patrol (CHP) expressed a
concern with the 45-day period between a motor carrier's receipt of the
FHWA's proposed safety rating and the time the rating becomes final.
The CHP believes that allowing a motor carrier to continue to operate
would appear to defeat the purpose of the ratings, and also that a
motor carrier's corrective action taken during the 45-day period could
cause the FHWA's intended rating downgrade to become moot.
FHWA response. The CHP appears to be concerned about the regulatory
grace period that the FHWA addressed in the November 6, 1997, final
rule (62 FR 60035, at 60039). The Motor Carrier Safety Act of 1990
specified a 45 day period before an unsatisfactory motor carrier was
required to cease passenger or HM operations. Section 4009 of TEA-21
also requires this time period. The previous regulations, as well as
those proposed today, are consistent with the purpose of the statutes.
As explained above, the FHWA believes motor carriers should not be
penalized by having their proposed unsatisfactory ratings released
during the time period they are given to improve their proposed
ratings.
Consolidated Safety Services, Inc. (CSS), a safety services
provider, expressed some reservation about the practical effects of the
statute's prohibitions. The CSS described its work for two Federal
agency clients, the Military Traffic Management Command (MTMC) and the
U.S. Postal Service (USPS). According to CSS, the MTMC requires motor
carriers to have a DOT satisfactory safety rating in order to be
considered for a contract to provide passenger transportation. The
USPS, on the other hand, refuses to allow unsatisfactory-rated motor
carriers to transport mail, but motor carriers rated conditional, as
well as unrated carriers, are eligible. Because of the FHWA's inability
(due to resource constraints) to rate all the motor carriers the USPS
had requested to be rated, CSS developed a ``DOT Equivalency Inspection
Program'' for the USPS. With the support of the National Star Route
Mail Contractors Association, CSS inspected over 100 mail carriers and
advised the USPS that ``over 80 percent of those contracted postal
carriers inspected could not meet the FHWA's minimums.'' According to
CSS, the USPS reverted to its original position, excluding only those
motor carriers specifically required by statute to be excluded (i.e.,
those with unsatisfactory ratings from the FHWA).
FHWA response. The USPS did not provide comments to this docket,
and since CSS did not describe the criteria it used to assess the
safety status of the USPS contract motor carriers, it is unclear
whether the 80 percent that failed the CSS program would also be rated
unsatisfactory under the FHWA's standards.
The Canadian Council of Motor Transport Administrators commented
that the TEA-21 prohibition against an unfit motor carrier's
transportation of any property would make the U.S. approach similar to
that of Canada.
The Public Utilities Commission of Ohio (PUCO) expressed concern
that the FHWA had not prepared cost-benefit analyses for the ANPRM
because the FHWA had maintained that the issues raised in the ANPRM did
not constitute ``significant regulatory action.'' The PUCO's comments
reflected its concern about potentially extensive changes to the safety
fitness program and the current and future role of States in conducting
motor carrier safety compliance reviews.
FHWA response. The FHWA used the ANPRM to gather information as a
prelude to a rulemaking. The ANPRM did not propose specific new or
revised regulations, therefore the FHWA did not have the basis to
perform detailed regulatory analyses at that time.
[[Page 44465]]
Federal Government Agency Use of Unsatisfactory Rated Motor
Carriers
Since 1991, any department, agency, or instrumentality of the
United States Government has been prohibited from using a passenger or
HM motor carrier with an unsatisfactory safety rating. Section 4009 of
TEA-21 extends this prohibition to cover all motor carriers found to be
unfit. As written, the prohibition applies to the Federal agency and
not to the motor carrier.
The FHWA would continue to advise a motor carrier of its proposed
safety rating as soon as possible after the FHWA's compliance review,
but not later than 30 days afterwards. At the end of the 45- or 60-day
period (or longer, if extended), the proposed rating would become the
motor carrier's final safety rating if the FHWA has no basis to change
it. On the effective date of a final unsatisfactory safety rating,
Federal government agencies will be precluded from using, or continuing
to use, these motor carriers' transportation services.
Changes to FHWA Organizational Structure
The FHWA has recently undergone a significant reorganization of its
field and headquarters offices. The nine FHWA Regions have been
eliminated and four Resource Centers have been established that provide
support to the FHWA Division offices located in each State.
In headquarters, many of the functions of the former Office of
Safety and Technology and Office of Field Operations under the
Associate Administrator for Motor Carriers have been combined into a
new Office of Motor Carrier Enforcement. The decision regarding safety
fitness has been elevated to the Program Manager for Motor Carrier and
Highway Safety, the senior manager of this operating unit of the FHWA
(the agency no longer uses the title Associate Administrator). We have
revised the appropriate sections of part 385 and section 390.27 to
reflect these changes in organizational structure and titles.
Rulemaking Analyses and Notices
The proposed changes to 49 CFR part 385 are a straightforward
implementation of the amendments to 49 U.S.C. 31144 made by section
4009 of TEA-21. The regulatory changes, like the statutory amendments,
simply expand a prohibition on interstate operations, which had
previously applied only to HM and passenger carriers, to all other
motor carriers. Section 15(b) of the MCSA of 1990 added to the FHWA's
existing safety rating a mandate to require that passenger and HM
carriers cease conducting those operations in interstate commerce 45
days after they received an unsatisfactory rating. Section 4009 of TEA-
21 clearly authorizes the FHWA to take the same course in shutting down
all other carriers 60 days after they receive an unsatisfactory rating.
The agency is undertaking a separate rulemaking action (see RIN 2125-
AE37) to explore means to improve its safety fitness determination
process in relation to its overall safety compliance and enforcement
program, as well as the application of those determinations within the
truck and bus industries.
The proposed rule would only apply prospectively. Motor carriers
which are currently rated unsatisfactory, which do not transport
passengers or HM, would not be affected unless the FHWA issued an
unsatisfactory safety rating in a follow-up compliance review conducted
on or after the rule's effective date. For the non-passenger and non-HM
motor carriers that receive a notice of a proposed unsatisfactory
safety rating on or after the effective date of a final rule, the
regulation would provide 60 days, with the possibility of an additional
60 days, to challenge the rating, or to demonstrate improvement in
their safety practices.
The FHWA will carefully consider comments it receives to evaluate
whether any changes to this proposal are required. Because U.S.
Government agencies would be precluded from contracting with unfit
motor carriers for non-HM freight transportation service, we are
working informally with the federal agencies that utilize substantial
amounts of contracted transportation (the United States Postal Service,
the General Services Administration, and the Military Traffic
Management Command) to advise them concerning this proposed rulemaking.
The FHWA particularly invites motor carriers who provide this
transportation to government agencies to comment on this proposed
rulemaking.
All comments will be available for examination using the docket
number appearing at the top of this document in the docket room at the
above address. The FHWA will file comments received after the comment
closing date in the docket and will consider late comments to the
extent practicable. The FHWA may, however, issue a final rule at any
time after the close of the comment period. In addition to late
comments, the FHWA will also continue to file, in the docket, relevant
information becoming available after the comment closing date, and
interested persons should continue to examine the docket for new
material.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this proposed regulatory action is
significant within the meaning of Executive Order 12866 and under the
regulatory policies and procedures of the DOT because of the
substantial public interest in the provision of safe interstate motor
freight and passenger transportation. This NPRM was reviewed by the
Office of Management and Budget. This proposed rule would require any
motor carrier in interstate commerce that the FHWA rates unsatisfactory
to cease providing CMV transportation after a grace period of 45 days
(for HM and passenger operations) or 60 days (for all other motor
carriers). A motor carrier would be allowed to commence those
operations again only if the FHWA determines its safety rating is no
longer unsatisfactory. Although these requirements have been in place
since 1991 for passenger and HM motor carriers, this is the first time
they would be applied to other motor carriers.
Motor carriers of passengers and of placardable quantities of HM
would not be subject to new sanctions for noncompliance as a result of
this regulatory action. In fact, under the new regulations, the FHWA
would have to respond to any requests for a follow-up review of an
unsatisfactory safety rating within 30 days--the current regulations
require this to be accomplished within 45 days. This revision is
required by 49 U.S.C. 31144(d)(2) and (3).
As of December 31, 1998, the FHWA's MCMIS listed 477,486 motor
carriers as active. Summary statistics of these motor carriers follow:
Motor carriers of passengers: 10,728 in MCMIS 3,242 rated (23
percent), 33 rated unsatisfactory (1 percent of rated passenger
carriers, 0.24 percent of all passenger carriers).
Motor carriers of HM: 41,723 in MCMIS 23,447 rated (56 percent),
565 rated unsatisfactory (2.4 percent of rated HM carriers, 1.4 percent
of all HM carriers).
Motor carriers of property, non-HM: 421,793 in MCMIS 102,517 rated
(24 percent), 8,999 rated unsatisfactory (8.8 percent of rated
carriers, 2 percent of all motor carriers of non-HM property).
The number of motor carriers with unsatisfactory safety ratings is
a small fraction of all the rated motor carriers in MCMIS, and a minute
fraction of the motor carriers of passengers and of HM. Although a
larger number of motor carriers of non-HM freight in MCMIS
[[Page 44466]]
have unsatisfactory safety ratings, the FHWA believes this is the
result of two factors. First, until this time, an unsatisfactory rating
did not prohibit a non-HM-freight motor carrier from operating in
interstate commerce. Second, many motor carriers in MCMIS may have
ceased operating in interstate commerce or are no longer in business.
Since there is no requirement for motor carriers to notify the FHWA of
a change in status, they continue to be counted as ``active''
interstate motor carriers. The MCMIS contains a motor carrier's last
rating of record, and, unless the motor carrier requested the FHWA to
reassess its safety posture with a view toward revising the safety
rating, this rating remains on file.
The following summary gives a recent history of follow-up
compliance reviews (CRs) on motor carriers performed by the FHWA in
fiscal year 1998. The columns represent the number of power units
operated by the motor carrier.
Table 1.--Follow Up Compliance Reviews, Fiscal Year 1998 (10/1/1997-09/30/1998)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1-6 7-20 21-100 101-500 501-1000 1001+ Total Percent
--------------------------------------------------------------------------------------------------------------------------------------------------------
Property carriers:
Start Unsat................................................. 113 101 53 5 0 0 272 100.0
End Sat..................................................... 40 32 13 1 0 0 86 31.6
End Cond.................................................... 33 33 19 2 0 0 87 32.0
End Unsat................................................... 19 22 15 1 0 0 57 21.0
End Not Rated............................................... 21 14 6 1 0 0 42 15.4
HM carriers:
Start Unsat................................................. 22 59 51 17 1 1 151 100.0
End Sat..................................................... 12 23 22 7 0 0 64 42.4
End Cond.................................................... 7 26 23 8 1 1 66 43.7
End Unsat................................................... 1 10 6 2 0 0 19 12.6
End Not Rated............................................... 2 0 0 0 0 0 2 1.3
Pass. carriers:
Start Unsat................................................. 19 12 3 0 2 0 36 100.0
End Sat..................................................... 17 7 2 0 0 0 26 72.2
End Cond.................................................... 2 5 1 0 1 0 9 25.0
End Unsat................................................... 0 0 0 0 1 0 1 2.8
End Not Rated............................................... 0 0 0 0 0 0 0 0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
For example, in fiscal year 1998, 272 re-rated motor carriers of
property (non-HM) had received an initial unsatisfactory safety rating.
All but 57 of them received a conditional or satisfactory safety rating
from the FHWA resulting from follow-up reviews performed during the
year; the 42 motor carriers that ended the year in the ``not rated''
category were no longer operating in interstate commerce. Supplemental
Item 1 of this docket contains summary statistics and detailed data
from calendar years 1994-1998 for passenger, HM, and non-HM property
motor carriers.
The FHWA anticipates that this rulemaking will have minimal
economic impact on the interstate motor carrier industry. Based upon
the statistics on follow-up compliance reviews conducted during
calendar years 1994 through 1998, the FHWA expects that between 50 and
100 motor carriers might not improve an initial proposed unsatisfactory
safety rating. These motor carriers would be required to cease their
operations in interstate commerce until they could demonstrate to the
FHWA that they had improved the safety of their operations. The vast
majority of motor carriers with unsatisfactory safety ratings have been
able to achieve improved ratings during follow-up CRs performed by the
FHWA and its State partners. The very few motor carriers that did not
achieve improved ratings represent the very few that have elected not
to devote resources to safety and regulatory compliance, both of which
should have been cornerstones of any responsible operation. However,
the FHWA is unable to determine the precise impact this rulemaking
would have on non-HM interstate motor carriers of property. As of late
1998, the FHWA has provided safety ratings to approximately 25 percent
of those motor carriers identified in the MCMIS as active. The FHWA is
interested in any information that will assist the agency in
determining the economic impact of this proposed rule on this portion
of the motor carrier industry and any additional impacts on its
customers.
With respect to motor carriers of non-HM freight, a small number
may be adversely affected by this regulatory action. A motor carrier of
non-HM freight that receives a notice of a proposed unsatisfactory
safety rating would be prohibited from providing transportation in
interstate commerce starting 61 days from the date of that notice,
unless the FHWA revises that rating as the result of (1) an
administrative review or (2) a demonstration by the motor carrier that
it has taken corrective action. If the FHWA determines a motor carrier
is making a good faith effort to improve its safety posture, the agency
could extend the initial 60-day period for up to 60 additional days.
Based upon its analysis of statistical information concerning motor
carriers' improvement in their safety ratings, the FHWA believes that
the vast majority of motor carriers interested in continuing their
operations would be able to do so. The agency believes that any
potential adverse economic impact to those relatively few motor
carriers who are unwilling or unable to demonstrate an improvement in
the safety of their operations within the 60 to 120 day period
specified in TEA-21 is entirely consistent with the intent of the
statute. The FHWA believes the traveling public would derive a safety
benefit from the removal from the Nation's highways of CMVs operated in
interstate commerce by those few motor carriers found to be unfit to
operate them safely. In addition, shippers of non-HM freight would
derive direct and indirect economic gains through the improved safety
and corresponding efficiency of their commercial motor freight
transportation.
This proposed rule would only affect the operations of the small
number of motor carriers determined to be unfit to operate CMVs based
on the frequency and severity of their safety violations, poor outcomes
of roadside inspections, and accident experience. The number of motor
carriers of non-HM freight that do
[[Page 44467]]
not improve their safety rating from unsatisfactory is expected to
continue to be small--fewer than 100 motor carriers per year. The FHWA
believes the number of motor carriers potentially subject to this level
of impact is much smaller than the number of motor carriers that ceases
operations as a result of normal economic fluctuations. This rulemaking
reinforces the importance of complying with the safety regulations by
putting into place a mechanism to force unfit motor carriers to improve
their operational safety. There are no new costs associated with this
rulemaking and the overall adverse economic effects would be minimal.
This rulemaking, if adopted, would allow the FHWA to require that
those few motor carriers of non-HM freight that cannot or will not
improve their safety performance above the level that produced an
unsatisfactory safety rating, to cease their operations in interstate
commerce. The FHWA believes that removing these motor carriers from the
public highways will provide a very important, although unquantifiable,
safety benefit. The agency believes these motor carriers pose a
significant safety risk to the traveling public because of their
demonstrated refusal, or inability, to comply with the FMCSRs. This
proposed rule would provide the FHWA with an essential tool to take
prompt and effective action against these motor carriers.
This rulemaking would not result in inconsistency or interference
with another agency's actions or plans. It would, however, implement a
specific congressional directive prohibiting Federal agencies from
using any motor carrier with an unsatisfactory safety rating to provide
``any transportation service.'' Therefore, all Federal agencies that
contract for motor carrier passenger or freight transportation in CMVs
must review the safety ratings of new and prospective motor carrier
contractors. The FHWA believes that the United States Postal Service,
the General Services Administration, and the Military Traffic
Management Command are the primary agencies affected; the FHWA is
working with these agencies to solicit their views on this rulemaking
action.
The FHWA believes that the rights and obligations of recipients of
Federal grants will not be materially affected by this regulatory
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 proposed rulemaking on
small entities. The motor carriers to be economically impacted by this
rulemaking would be those who are rated unsatisfactory and fail to take
appropriate actions to improve their rating. As of March, 1999, some 79
percent of the 483,385 active motor carriers in MCMIS were in the
``very small'' or ``small'' category (less than 21 power units). The
FHWA's statistical information contained in MCMIS indicates that
relatively few small motor carriers of passengers or HM have received
unsatisfactory safety ratings since 1994, the earliest date for which
information is readily available, and fewer still did not improve their
safety ratings based upon the FHWA's follow-up compliance reviews.
The following tables show statistics for follow-up compliance
reviews of motor carriers of property (non-HM) for calendar years 1994
through 1998.
Table 2.--Motor Carriers of Property Initially Rated Unsatisfactory, by Number of Drivers
----------------------------------------------------------------------------------------------------------------
1-4 5-19 20-49 50-99 100-299 300+ Total
----------------------------------------------------------------------------------------------------------------
CY 94.............................. 475 293 89 36 19 7 919
CY 95.............................. 196 204 109 35 15 2 561
CY 96.............................. 158 208 102 30 11 6 515
CY 97.............................. 94 168 54 16 9 0 341
CY 98.............................. 81 152 46 7 4 0 290
----------------------------------------------------------------------------------------------------------------
Table 3: Motor Carriers of Property Starting and Ending Unsatisfactory, by Number of Drivers
----------------------------------------------------------------------------------------------------------------
1-4 5-19 20-49 50-99 100-299 300+ Total
----------------------------------------------------------------------------------------------------------------
CY 94.............................. 37 41 17 5 3 0 103
CY 95.............................. 23 24 21 9 1 0 78
CY 96.............................. 17 37 14 3 1 0 72
CY 97.............................. 5 7 3 2 0 0 17
CY 98.............................. 15 28 9 3 1 0 56
----------------------------------------------------------------------------------------------------------------
Between 81 and 475 motor carriers of property that employed between
1 and 4 drivers began a calendar year with an unsatisfactory safety
rating. By the end of the calendar year, all but between 5 and 37 had
improved their safety rating. During that same period, between 152 and
293 motor carriers of property that employed between 5 and 19 drivers
began the calendar year with an unsatisfactory safety rating. All but
between 7 and 37 had improved their safety rating by the end of the
year. As long as these motor carriers held (or were able to improve)
their safety ratings to conditional or satisfactory, Sec. 385.13 of
this proposed rule would not have affected their ability to operate in
interstate commerce. There is no reason to believe that this proposed
regulatory action would increase those impacts.
Therefore, the FHWA certifies that this regulatory action would not
have a significant economic impact on a substantial number of small
entities.
Unfunded Mandates Reform Act of 1995 and Executive Order 12875
(Enhancing the Intergovernmental Partnership)
This proposed rule would not impose a Federal mandate resulting in
the expenditure by State, local, or tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year (2 U.S.C 1531 et seq.).
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
We have analyzed this proposal under Executive Order 13045,
``Protection of Children from Environmental Health
[[Page 44468]]
Risks and Safety Risks.'' This proposed rule is not economically
significant and does not concern an environmental risk to health or
safety that would disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This proposed rule would implement a statutory mandate to prohibit
interstate motor carrier operations found to be unsafe and therefore
unfit. Motor carriers can avoid all of the implications of an
unsatisfactory safety rating simply by complying with the FMCSRs.
Furthermore, motor carriers with a proposed unsatisfactory safety
rating would have at least 45 or 60 days, depending on the type of
operation, to correct deficiencies identified by the FHWA before
halting operations in interstate commerce. Finally, even if a motor
carrier were to suspend its operations, it can resume operations by
correcting its deficiencies, coming into compliance with the FMCSRs,
and demonstrating these improvements to the FHWA. The FHWA therefore
certifies that this rule has no takings implications under the Fifth
Amendment or Executive Order 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612. The FHWA has determined
this proposed rule does not have sufficient federalism impacts to
warrant the preparation of a Federalism Assessment.
These proposed changes to the FMCSRs would not directly preempt any
State law or regulation. They would not impose additional costs or
burdens on the States. Although section 4009 of TEA-21 requires the
FHWA to revise part 385 of the FMCSRs, States are not required to adopt
part 385 as a condition for receiving Motor Carrier Safety Assistance
Program (MCSAP) grants. Also, this action would not have a significant
effect on the States' ability to execute traditional State governmental
functions.
Executive Order 12372 (Intergovernmental Review)
Catalog of 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 proposed action would not involve an information collection
that is subject to the requirements of the Paperwork Reduction Act of
1995, 44 U.S.C. 3501-3520.
National Environmental Policy Act
The agency has analyzed this proposal for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
has determined that this action would not have an adverse effect on the
quality of the environment.
Regulatory Identification Number
A regulatory 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
49 CFR Part 385
Administrative practice and procedure, Highway safety, Motor
carriers, Motor vehicle safety, Reporting and recordkeeping
requirements.
49 CFR Part 390
Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.
Issued on: August 6, 1999.
Kenneth R. Wykle,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to amend title
49, Code of Federal Regulations, Chapter III, parts 385 and 390 as set
forth below:
PART 385--SAFETY FITNESS PROCEDURES
1. Revise the authority citation for part 385 to read as follows:
Authority: 49 U.S.C. 104, 504, 521(b)(5)(A), 31136, 31144, and
31502; and 49 CFR 1.48.
2. Revise Sec. 385.1 to read as follows:
Sec. 385.1 Purpose and scope.
(a) This part establishes the FHWA's procedures to determine the
safety fitness of motor carriers, to assign safety ratings, to direct
motor carriers to take remedial action when required, and to prohibit
motor carriers receiving a safety rating of ``unsatisfactory'' from
operating a CMV.
(b) The provisions of this part apply to all motor carriers subject
to the requirements of this subchapter, except non-business private
motor carriers of passengers and motor carriers conducting for-hire
operations of passenger CMVs with a capacity of 8-15 persons, including
the driver.
3. Revise Sec. 385.11 to read as follows:
Sec. 385.11 Notification of safety fitness determination.
(a) The FHWA will provide a motor carrier written notice of any
rating resulting from a safety fitness review as soon as practicable,
but not later than 30 days after the review. The notice will take the
form of a letter issued from the FHWA's headquarters office and will
include a list of FMCSR and HMR compliance deficiencies which the motor
carrier must correct.
(b) If the safety rating is ``satisfactory'' or improves a previous
``unsatisfactory'' safety rating, it is final and becomes effective on
the date of the notice.
(c) In all other cases, a notice of a proposed safety rating will
be issued. It becomes the final safety rating after the following time
periods:
(1) For motor carriers transporting hazardous materials in
quantities requiring placarding or transporting passengers by CMV--45
days after the date of the notice.
(2) For all other motor carriers operating CMVs--60 days after the
date of the notice.
(d) A proposed safety rating of ``unsatisfactory'' is a notice to
the motor carrier that the FHWA has made a preliminary determination
that the motor carrier is ``unfit'' to continue operating in interstate
commerce, and that the prohibitions in Sec. 385.13 will be imposed
after 45 or 60 days if necessary safety improvements are not made.
(e) A motor carrier may request the FHWA to perform an
administrative review of a proposed or final safety rating. The process
and the time limits are described in Sec. 385.15.
(f) A motor carrier may request a change to a proposed or final
safety rating based upon its corrective actions. The process and the
time limits are described in Sec. 385.17.
4. Revise Sec. 385.13 to read as follows:
Sec. 385.13 Unsatisfactory rated motor carriers; prohibition on
transportation; ineligibility for Federal contracts.
(a) A motor carrier rated ``unsatisfactory'' is prohibited from
operating a CMV. Information on motor carriers, including their most
current safety rating, is available from the FHWA on the internet at
http://www.safersys.org, or by telephone, (800) 832-5660.
(1) Motor carriers transporting hazardous materials in quantities
[[Page 44469]]
requiring placarding, and motor carriers transporting passengers in a
CMV, are prohibited from operating a CMV beginning on the 46th day
after receiving the FHWA's notice of proposed ``unsatisfactory''
rating.
(2) All other motor carriers rated after [date 30 days after the
date of publication of the final regulations in the Federal Register]
are prohibited from operating a CMV beginning on the 61st day after the
motor carrier receives the FHWA's notice of proposed ``unsatisfactory''
rating. If the FHWA determines the motor carrier is making a good-faith
effort to improve its safety fitness, the FHWA may allow the motor
carrier to operate for up to 60 additional days.
(b) A Federal agency must not use a motor carrier that holds a
``unsatisfactory'' rating to transport passengers or to transport
hazardous materials in quantities requiring placarding in a CMV.
(c) A Federal agency must not use a motor carrier for other CMV
transportation if that carrier holds an ``unsatisfactory'' rating which
became effective on or after [date 30 days after the date of
publication of the final regulations in the Federal Register].
5. Revise Sec. 385.15 to read as follows:
Sec. 385.15 Administrative review.
(a) A motor carrier may request the FHWA to conduct an
administrative review if it believes the FHWA has committed an error in
assigning its proposed or final safety rating.
(b) The motor carrier's request must explain the error it believes
the FHWA committed in issuing the safety rating. The motor carrier must
include a list of all factual and procedural issues in dispute, and any
information or documents that support its argument.
(c) The motor carrier must submit its request in writing to the
FHWA, Program Manager, Office of Motor Carrier and Highway Safety, 400
Seventh Street, SW., Washington DC 20590.
(1) If a motor carrier has received a notice of a proposed
``unsatisfactory'' rating, it should submit its request within 15 days
from the date of the notice.
(2) A motor carrier must make a request for an administrative
review within 90 days of the date of the proposed or final safety
rating issued by the FHWA under the provisions of Sec. 385.11, or
within 90 days after denial of a request for a change in rating under
Sec. 385.17(i).
(d) The FHWA may ask the motor carrier to submit additional data
and attend a conference to discuss the safety rating. If the motor
carrier does not provide the information requested, or does not attend
the conference, the FHWA may dismiss its request for review.
(e) The FHWA will notify the motor carrier in writing of its
decision following the administrative review. The FHWA will complete
its review:
(1) Within 30 days after receiving a request from a hazardous
materials or passenger motor carrier that has received a proposed or
final ``unsatisfactory'' safety rating.
(2) Within 45 days after receiving a request from any other motor
carrier that has received a proposed or final ``unsatisfactory'' safety
rating.
(f) The decision constitutes final agency action.
(g) Any motor carrier may request improvement in the safety rating
under the provisions of Sec. 385.17.
6. Revise Sec. 385.17 to read as follows:
Sec. 385.17 Change to safety rating based upon corrective actions.
(a) A motor carrier that has taken action to correct the
deficiencies that resulted in a proposed or final rating of
``conditional'' or ``unsatisfactory'' may request a rating change at
any time.
(b) A motor carrier must make this request in writing to the FHWA
Resource Center for the geographic area where the carrier maintains its
principal place of business. The addresses and geographical boundaries
of the Resource Centers are listed in Sec. 390.27.
(c) The motor carrier must base its request upon evidence that it
has taken corrective actions and that its operations currently meet the
safety standards and factors specified in Secs. 385.5 and 385.7. The
request must include a written description of corrective actions taken,
and other documentation the carrier wishes the FHWA to consider.
(d) The FHWA will make a final determination on the request for
change based upon the documentation the motor carrier submits, and any
additional relevant information.
(e) The FHWA will perform reviews of requests made by motor
carriers with a proposed or final ``unsatisfactory'' safety rating in
the following time periods after the motor carrier's request:
(1) Within 30 days for motor carriers transporting passengers in
CMVs or placardable quantities of hazardous materials.
(2) Within 45 days for all other motor carriers.
(f) The filing of a request for change to a proposed or final
safety rating under this section does not stay the 45-day period
specified in Sec. 385.13(a)(1) for motor carriers transporting
passengers or hazardous materials. If the motor carrier has submitted
evidence that corrective actions have been taken pursuant to this
section and the FHWA cannot make a final determination within the 45-
day period, the period before the proposed safety rating becomes
effective may be extended for up to 10 days at the discretion of the
FHWA.
(g) The FHWA may allow a motor carrier with a proposed rating of
``unsatisfactory'' (except those transporting passengers in CMVs or
placardable quantities of hazardous materials) to continue to operate
in interstate commerce for up to 60 days beyond the 60 days specified
in the proposed rating, if the FHWA determines that the motor carrier
is making a good faith effort to improve its safety status. This
additional period would begin the 61st day after the date of the
proposed ``unsatisfactory'' rating.
(h) If the FHWA determines that the motor carrier has taken the
corrective actions required and that its operations currently meet the
safety standard and factors specified in Secs. 385.5 and 385.7, the
agency will notify the motor carrier in writing of its upgraded safety
rating.
(i) If the FHWA determines that the motor carrier has not taken all
the corrective actions required, or that its operations still fail to
meet the safety standards and factors specified in Secs. 385.5 and
385.7, the agency will notify the motor carrier in writing.
(j) Any motor carrier whose request for change is denied in
accordance with paragraph (i) of this section may request
administrative review under the procedures of Sec. 385.15. The motor
carrier must make the request within 45 days of the denial of the
request for rating change. If the proposed rating has become final, it
shall remain in effect during the period of any administrative review.
PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
7. The authority citation for part 390 continues to read as
follows:
Authority: 49 U.S.C. 13301, 13902, 31132, 31133, 31136, 31502,
31504; sec. 204 of Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701
note); and 49 CFR 1.48.
8. Revise Sec. 390.27 to read as follows:
Sec. 390.27 Locations of motor carrier and highway safety resource
centers.
The following table sets forth the locations and territories for
the four resource centers that are established to provide support to
the FHWA division offices located in each State:
[[Page 44470]]
----------------------------------------------------------------------------------------------------------------
Resource center Territory included Location of office
----------------------------------------------------------------------------------------------------------------
Eastern............................ CT, DC, DE, MA, MD, ME, NJ, NH, NY, City Crescent Building, #10 South
PA, PR, RI, VA, VT, WV. Howard Street, Suite 4000,
Baltimore, MD 21201-2819.
Midwestern......................... IA, IL, IN, KS, MI, MO, MN, NE, OH, 19900 Governors Drive, Suite 210,
WI. Olympia Fields, IL 60461-1021.
Southern........................... AL, AR, FL, GA, KY, LA, MS, NC, NM, 61 Forsyth Street, SW, Suite 17T75,
OK, SC, TN, TX. Atlanta, GA 30303-3104.
Western............................ American Samoa, AK, AZ, CA, CO, Guam, 201 Mission Street, San Francisco,
HI, ID, Mariana Islands, MT, ND, NV, CA 94105.
OR, SD, UT, WA, WY.
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[FR Doc. 99-20905 Filed 8-13-99; 8:45 am]
BILLING CODE 4910-22-P
