[Federal Register Volume 62, Number 215 (Thursday, November 6, 1997)]
[Rules and Regulations]
[Pages 60035-60046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29380]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 385

[FHWA Docket Nos. MC-94-22 and MC-96-18; FHWA-97-2252]
RIN 2125-AC 71


Safety Fitness Procedure; Safety Ratings

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: This document incorporates a Safety Fitness Rating Methodology 
(SFRM) as an appendix to the Motor Carrier Safety Fitness Procedures 
regulations. The SFRM will be used to measure the safety fitness of 
motor carriers against the safety fitness standard contained in 49 CFR 
Part 385. By this action the FHWA will supersede the interim final rule 
promulgated on May 28, 1997, effective May 28, 1997 until November 28, 
1997 (62 FR 28807). That rule incorporated an SFRM to calculate the 
safety fitness of motor carriers transporting hazardous materials in 
quantities for which vehicle placarding is required, or transporting 15 
or more passengers including the driver. The rule also includes a 
procedure which provides a notice period of 45 days during which a 
proposed rating can be challenged before it becomes effective.

DATES: The effective date of this regulation is November 28,1997.

FOR FURTHER INFORMATION CONTACT: Mr. William C. Hill, Vehicle and 
Operations Division, Office of Motor Carrier Research and Standards, 
(202) 366-4009, or Mr. Charles Medalen, Office of the Chief Counsel, 
(202) 366-1354, Federal Highway Administration, 400 Seventh Street, 
SW., Washington, D.C. 20590. Office hours are from 7:45 a.m. to 4:15 
p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Introduction

    The FHWA is taking this action largely in response to a finding of 
the District of Columbia Circuit Court of Appeals, infra. This final 
rule is required to meet the FHWA's responsibility to maintain a system 
to determine the safety fitness of motor carriers operating in 
interstate commerce, but the agency is considering other means to 
achieve that goal.
    Some commenters to this docket argued that a performance-based 
system modeled on SafeStat would be fair, and perhaps preferable to the 
system proposed in the FHWA's May 28 NPRM, infra, but that improvements 
are needed in the generation and use of data.
    The FHWA's goal is to create a more performance-based means of 
determining when carriers are not fit to conduct commercial motor 
vehicle (CMV) operations safely in interstate commerce. A future rating 
system using a pass-fail test is conceivable. The FHWA will publish an 
advanced notice of proposed rulemaking shortly in the Federal Register 
requesting comments and supporting data on the future of a rating 
system that can be used both in making safety fitness determinations 
and in meeting the demands of shippers, insurers and other present and 
potential users interested in evaluating motor carrier performance.

Background

    The U.S. Court of Appeals for the District of Columbia Circuit 
ruled on March 19, 1997, that the FHWA's procedures for assigning 
safety ratings were adopted contrary to law. MST Express and Truckers 
United for Safety v. Department of Transportation and Federal Highway 
Administration, 108 F.3d 401 (D.C. Cir. 1997). The court found the FHWA 
had failed to carry out its statutory obligation to establish, by 
regulation, a means of determining whether a motor carrier has complied 
with the safety fitness requirements of the Motor Carrier Safety Act of 
1984 (MCSA) (codified at 49 U.S.C. 31144) because the SFRM had not been 
adopted pursuant to notice and comment rulemaking, as 49 U.S.C. 
31144(a) requires. The safety rating of MST Express was determined 
using the SFRM, and the petitioner's conditional safety rating was 
therefore vacated and the matter remanded to the FHWA ``for such 
further action as it may wish to take, consistent with the decision.''

[[Page 60036]]

    In response to the court's decision the FHWA issued an interim 
final rule (62 FR 28807) effective May 28, 1997, adopting the 
challenged SFRM but only to rate motor carriers transporting hazardous 
materials or passengers pending the development of a permanent rule. 
This step was necessary in order to enable the agency to comply with 
the mandate of the MCSA of 1990 (49 U.S.C. 5113), which requires that 
passenger and hazardous materials carriers cease operations within 45 
days of being rated unsatisfactory.
    In a notice of proposed rulemaking (NPRM) (62 FR 28826), also 
published on May 28, 1997, the FHWA proposed to modify the SFRM, 
incorporate it as Appendix B to Part 385, and use it in the process of 
deciding whether all motor carriers meet the safety fitness 
requirements.
    The FHWA had been using an SFRM, comprised of six rating factors, 
since October 1, 1989, as the mechanism for calculating how well motor 
carriers adhere to 49 CFR 385.5, Safety fitness standard. In addition 
to making the detailed explanation of the SFRM publicly available since 
August 16, 1991, the FHWA issued notices seeking comments from the 
public in FHWA Docket Nos. MC-91-8 and MC-94-22.
    In the first docket, the FHWA solicited public comment on an 
interim final rule (56 FR 40801) (August 16, 1991) implementing the 
provision of the MCSA of 1990 prohibiting a motor carrier with an 
unsatisfactory safety rating from operating CMVs to transport: (1) 
Hazardous materials in quantities for which vehicle placarding is 
required, or (2) more than 15 passengers including the driver. This 
prohibition becomes effective after 45 days have elapsed following 
receipt of an unsatisfactory safety rating issued by the FHWA. During 
the 45-day period, the motor carrier should take such action as may be 
necessary to improve its safety rating to conditional or satisfactory 
or be subject to the prohibition. Fourteen comments were received in 
response to the 1991 interim final rule, and those which provided 
information relevant to the May 28, 1997, NPRM were discussed in that 
document.
    In the second docket, initiated by a notice published in the 
Federal Register on September 14, 1994 (59 FR 47203), the FHWA 
requested comments on changes made to the SFRM in 1993. Additional 
changes to the SFRM, which were to become effective on October 1, 1994, 
were also explained and comments were invited. These changes initiated 
the use of violations of the safety regulations designated as ``acute'' 
or ``critical'' to rate each of the five regulatory factors evaluated 
when performing a compliance review (CR) at a carrier's place of 
business.
    The FHWA also solicited comments concerning: (1) The direction that 
future modifications to the SFRM should take, and (2) how best to 
disseminate information to the industry about new regulations and the 
FHWA programs that encourage ``voluntary compliance.''
    The 17 comments received in response to the second docket were 
discussed in the May 28, 1997, NPRM to the extent they provided 
relevant information.
    On April 29, 1996, the FHWA proposed to reorganize and revise its 
procedural rules, including those related to the assignment of ratings 
(61 FR 18866). Among the revisions proposed was a procedure for the 
issuance of a notice of proposed rating which provided a 45-day period 
within which a motor carrier could challenge a proposed rating before 
it became effective. The procedure also provided relief from an adverse 
rating to carriers that were willing to make credible, effective and 
verifiable commitments to improved management and performance.

Discussion of Comments

    Thirty two comments were received in response to the May 28, 1997, 
interim final rule (62 FR 28807) and NPRM (62 FR 28826). Only a few of 
the 125 comments received in response to the April 29, 1996 NPRM on 
procedural rules addressed the notice of proposed rating provision.

Purpose of Safety Ratings

    The Transportation Lawyers Association (TLA) suggested that the 
FHWA undertake a thorough evaluation of its entire program by first 
recognizing that the current rating system serves two purposes, 
information (i.e., the rating) and enforcement. It recommended the FHWA 
separate the rating from enforcement as it believes that combining them 
is unworkable.
    The American Trucking Associations (ATA) stated that the current 
SFRM is based on the premise that a lack of ``safety management 
controls'' is indicative of an unsafe carrier, yet it does not believe 
the FHWA has demonstrated that a lack of compliance will cause a 
carrier to be unsafe.
    The safety rating provides information, both to the rated carrier 
and anyone else inquiring about the rating, concerning the degree of 
adherence by the motor carrier to the Part 385 safety fitness standard. 
Enforcement is an aspect of the rating only in the sense that a motor 
carrier with an unsatisfactory rating is prohibited from transporting 
hazardous materials requiring placarding or 15 or more passengers 
including the driver. Congress, however, mandated this result by 
enacting the prohibition against transportation by such carriers in the 
MCSA of 1990. The FHWA, moreover, believes that sufficient data exists 
to conclude that motor carriers with inadequate safety management 
controls, i.e., less than satisfactory compliance with the safety 
fitness standard, are more likely to have higher accident rates. In 
addition, the FHWA has commissioned research by the Volpe National 
Transportation Systems Center, part of the Research and Special 
Programs Administration, to assess the performance of the CR program 
through the development of an Impact Assessment Model. Preliminary 
indications are that CR activity, due to its educational, safety 
awareness and sanction aspects, has substantial crash reduction 
benefits.

Accident Factor

    The National Tank Truck Carriers (NTTC), Rocor Transportation (RT), 
Truckload Carriers Association (TCA), American Movers Conference (AMC), 
the ATA, Oregon Department of Transportation, Motor Carrier 
Transportation Branch (ODOT/MCTB), and Ryder System, Inc. (RS) 
supported the proposal to adopt a recordable accident rate for the 
accident factor of the SFRM. The Advocates for Highway and Auto Safety 
(AHAS) questioned the statement in the NPRM that ``The data indicate 
that the vast majority of all accidents have been determined to be 
preventable.''
    Santee Carriers (SC) , Vertex Chemical Corporation (VC), and the 
Owner Operator Independent Drivers Association, Inc. (OOIDA) wanted to 
retain the recordable preventable accident criteria for the accident 
factor, as this would measure accidents within the carrier's control, 
and OOIDA would like the ``preventability'' determination made more 
objective. The TCA stated that the FHWA has yet to define the criteria 
to be used in determining preventability.
    The Association of Waste Hazardous Materials Transporters (AWHMT), 
Distribution & LTL Carrier Association (DLCA), the VC, Petroleum 
Marketers Association of America (PMAA) and the ATA recommended 
determining accident rates on a multi-year basis. They believe a multi-
year standard is more reflective of the average accident rate. The TCA 
and the NPTC recommended that there be a midpoint between accident 
rates of 1.6 and 2.1 to

[[Page 60037]]

define an unsatisfactory rating in the accident factor for carriers 
with some specified significant portion, though not all, of their 
mileage in urban areas.
    The TCA, the AMC, Agricultural Transporters Conference (ATC), 
California Highway Patrol (CHP) and the RS recommended adopting 
different accident rates for particular industry segments and types of 
operations. The PMAA believes that the proposed 2.1 accident rate is 
unfair for its short haul carriers because most of their mileage occurs 
in heavy traffic environments. A similar concern was expressed by the 
VC and the OOIDA.
    The RI and the NPTC opposed removing the conditional level in the 
accident factor rating. The AHAS opposed a single tier rating for the 
accident factor as motor carriers not assigned an unsatisfactory factor 
rating could not be distinguished from unrated carriers. They also 
opposed continuation of the exception for carriers with less than 20 
drivers (these carriers could not be rated less than conditional for 
the accident factor) as they believe some of these carriers could have 
very high accident rates.
    The DLCA, the TCA, the AWMT, the VC, the NADA, the ATA, New Mexico 
Motor Carrier's Association (NMMCA), and the CHP wanted the FHWA to use 
only ``at fault'' accidents, those determined by law enforcement 
officers to be the fault of the CMV driver or those otherwise clearly 
attributable to the fault of the CMV driver or carrier, for rating the 
accident factor.
    The NPTC, the ATA and the AHAS questioned whether doubling the 
national average is appropriate, as poor mileage information undermines 
accurate calculation of accident rates. The NPTC stated that the FHWA 
presented no statistical data for doubling the accident rate, and that 
a more appropriate reference would be the median accident rate.
    The FHWA has carefully considered all of the comments and for the 
following reasons believes it is reasonable to use the recordable 
accident rate for evaluating the accident factor. The data from Fiscal 
Years 1994, 1995 and 1996 in Recordable Rate (RR) and Recordable 
Preventable Rate (RPR) is as follows: 1994: RR=.804; RPR=.553; 1995: 
RR=.724; RPR=.528; 1996: RR=.713; RPR=.503. The FHWA has increasingly 
focused CRs on carriers most likely to have accidents, thus, the rates 
for reviewed carriers are higher than the rates would be for all 
carriers subject to the Federal Motor Carrier Safety Regulations 
(FMCSRs). The recordable accident rates used were taken from all CRs 
performed in Fiscal Years 1994, 1995 and 1996, which addresses the 
concern that the average accident rate should be on a multi-year basis. 
The average recordable rate was .747, and the average recordable rate 
for carriers operating entirely within a 100 air mile radius was .839 
per million miles. Recent analysis of accident rates for all carriers 
showed only small differences in rates by fleet size, and the 
differential between recordable and recordable preventable accidents 
was consistent by fleet size. The FHWA will rate the accident factor 
only when a carrier has two or more accidents in the 12 months prior to 
the CR. A single accident could easily place a small carrier, or a 
larger carrier operating very few miles, over the threshold for the 
unsatisfactory factor rating, which is not a reliable outcome. By using 
only the unsatisfactory rating the FHWA believes it is sending a 
message that any accident is unacceptable; however, only those carriers 
that are over the threshold will be identified in the factor rating. A 
motor carrier with an accident rate twice the average rate for all 
similarly situated carriers is most likely to have inadequate or 
improperly functioning safety management controls.
    An urban carrier (a carrier operating entirely within the 100 air 
mile radius) with a recordable accident rate over 1.7 (approximately 
twice the 1994-96 average of .839) will receive an unsatisfactory 
factor rating. All other carriers with a recordable accident rate 
greater than 1.5 (approximately double the 1994-96 average of .747) 
will receive an unsatisfactory factor rating.
    The FHWA stated in the NPRM, ``If a driver, who exercises normal 
judgment and foresight could have foreseen the possibility of the 
accident that in fact occurred, and avoided it by taking steps within 
his/her control which would not have risked causing another kind of 
mishap, the accident was preventable.'' The FHWA reviewed the data 
relative to the statement in the NPRM that ``the vast majority of all 
accidents have been determined to be preventable.'' The statement 
should have said simply that the majority of all accidents are 
preventable, as approximately two thirds of recordable accidents are 
preventable.
    The SFRM is the means by which the FHWA calculates a motor 
carrier's adherence to the Sec. 385.5 safety fitness standard. As it is 
a method and not an absolute criterion, the FHWA will continue to 
consider non-preventability of accidents when a motor carrier contests 
a rating by presenting compelling evidence that the recordable rate, as 
applied to its particular circumstances, is not a fair means of 
evaluating its accident factor. An example would be a motor carrier 
that had two recordable accidents in the 12 months prior to the CR and 
in both accidents its' CMVs were rear-ended when stopped for a signal 
light. The FHWA believes there will be relatively few instances where a 
motor carrier will be able to avail itself of the non-preventability 
defense to an adverse rating based on the accident factor. Retaining 
the non-preventability exception provides motor carriers the ability to 
present information that their accident factor should undergo a second-
level evaluation. Adopting the 45-day notice of proposed rating 
procedure will allow for such second-level review in a meaningful 
manner.
    The FHWA is continuing to evaluate the possibility of setting 
different accident-rate thresholds for different types of 
transportation, extending the urban carrier threshold to carriers that 
are not exclusively urban, and establishing a different threshold for 
an unsatisfactory accident factor rating for carriers with very few 
accidents, as opposed to those with many accidents. No such changes are 
included in this final rule, however.
    The FHWA will continue to examine the accident data in the Motor 
Carrier Management Information System (MCMIS) as a means to evaluate 
all carriers' accident rates. This source of information is 
increasingly reliable. The states and their subdivisions have uploaded 
their accident data more timely and accurately with each year since the 
National Governors Association accident reporting system was 
inaugurated in 1992.

Objectivity of Ratings

    The DLCA and the ATA argued that there is too much variance by 
regions in the rating process. Further, the ATA stated that CRs must be 
performed uniformly throughout the country, and the ``findings of the 
CR must accurately reflect the overall safety posture of the motor 
carrier.'' It also commented that ``the CR and rating processes should 
not be overly influenced by the attitude of individual investigators 
and the results should not be different depending on a motor carrier's 
geographical location.''
    The FHWA believes that, having modified the SFRM to rate motor 
carriers on the basis of actual violations of ``acute'' regulations and 
patterns of violations of ``critical'' regulations and to measure 
performance by recordable accidents and vehicle out-of-service (OOS) 
rates from roadside driver/vehicle inspections, the safety rating 
process has been made more objective. The regulations identified as 
``acute''

[[Page 60038]]

and ``critical'' enable the motor carriers with adequate safety 
management controls to direct their initial compliance efforts toward 
these regulations. There should not be a pattern, i.e., a 10 percent 
violation rate, of `critical' regulations by motor carriers exercising 
due diligence in their efforts to comply with the regulations. The FHWA 
continues to work toward making the CR process as fair and as uniform 
as possible. The agency believes that an important aspect of national 
uniformity in the performance of CRs is the review of a relatively 
constant number of vehicles, drivers, and records which varies with the 
number of vehicles and drivers performing transportation for the 
carrier. The minimum number of vehicles, drivers, and records to review 
is derived from a sampling chart, which provides guidance to the 
individual performing the CR. It is relevant that motor carriers are 
required to comply with all applicable FMCSRs and Hazardous Materials 
Regulations (HMRs). Thus, to perform a CR based on a random sample of a 
carrier's drivers, vehicles and records would be counter-productive in 
determining if the carrier was complying with regulatory requirements 
and meeting the Safety fitness standard in Sec. 385.5.

``Acute'' and ``Critical'' Regulations

    The AHAS and the AWHMT believe that the FHWA has not explained why 
regulations are categorized as ``acute'' or ``critical.'' The AWHMT 
questioned the designation of certain regulations as ``critical'' and 
argued that they should be ``acute'' regulations. The AWHMT also wanted 
to know the FHWA's rationale for the ``10 percent threshold when 
assessing points to carriers for a pattern of violations of a 
``critical'' regulation,'' and also asked what is meant by ``large 
numbers'' concerning the pattern of violations when ``critical'' 
regulations were discussed. The AHAS is concerned with FHWA's comment 
that ``even a carrier with effective safety management controls will 
likely violate some of the `critical' regulations.'' The AHAS also 
wanted violations of ``acute'' regulations to be cited even when the 
motor carrier did not have knowledge or could not reasonably be 
expected to have knowledge of the violation.
    The FHWA has categorized certain regulations as ``acute'' or 
``critical'' based on the experience of the Federal field staff and 
State enforcement officials. As the terms imply, such regulations have 
a potential or actual impact on operational safety, and a carrier's 
compliance with them is a direct indication of its ability effectively 
to manage the complex operations needed to make it a responsible user 
of the public highways. The FHWA believes that even motor carriers with 
effective safety management controls may incur some violations of 
``critical'' regulations, notwithstanding systematic review of their 
compliance with the regulations. This is so because of the necessity 
for remote and often post hoc monitoring by a safety manager. A motor 
carrier that reviews drivers records of duty status (RODS) and 
discovers three instances out of 100 RODS reviewed where drivers 
exceeded the 10-hour driving limitation in Sec. 395.3(a)(1), may take 
appropriate actions to discipline the drivers, but the violations have 
still occurred. The carrier is not in total compliance, but the 97 
instances where compliance was found indicates the carrier's safety 
management controls are effective. A violation rate over the ``10 
percent threshold'' is used as an indication that a pattern of 
noncompliance is detectable and tolerated.
    The FHWA has reviewed the reference in the SFRM to ``large numbers 
of documents'' found in (62 FR 28832). The agency was attempting to 
convey the principle that a pattern of violations is more than an 
isolated instance of noncompliance. There was no intent to imply a 
specific number of documents. To clarify its intent the sentence now 
reads: ``When a number of documents are reviewed, the number of 
violations required to meet a pattern is equal to at least 10 percent 
of those examined.'' The preceding sentence remains ``A pattern is more 
than one violation.'' Concerning the AHAS recommendation that the FHWA 
should cite the carrier for all violations of ``acute `` regulations, 
the FHWA believes its proposed policy was and is correct. Violations of 
``acute'' regulations will not be cited on the CR or used in the SFRM 
if, under the circumstances, the carrier did not know, and could not 
reasonably be expected to have known, of a violation that the driver 
deliberately concealed from the carrier. Because of the nature of 
``acute'' regulations, however, such omissions are expected to be rare.

Vehicle Factor

    The AWHMT wanted to know if the FHWA plans to adjust the 34 percent 
OOS rate for the vehicle factor. The NTTC, the TCA and the AMC 
recommended that the FHWA consider not assigning any weight to OOS 
violations in the vehicle factor until the NTTC's petition to 
incorporate into the FMCSRs the current OOS criteria published by the 
Commercial Vehicle Safety Alliance and maintained in concert with the 
FHWA, is finally disposed of. One association noted that good roadside 
inspections are often not documented. Rocor Transportation found the 
current criteria for the vehicle factor acceptable.
    The FHWA will continue to rate the vehicle factor as proposed in 
the NPRM as it believes this is an appropriately objective way to 
evaluate the carrier's performance. Whether the OOS criteria should be 
incorporated into the FMCSRs is an issue unrelated to the validity of 
those criteria as a measure of vehicle safety. The OOS criteria are 
essentially enforcement tolerances, as Sec. 396.3(a)(1) requires that 
parts and accessories be in safe and proper operating condition at all 
times.
    The 34 percent OOS rate is the first indicator in evaluating the 
vehicle factor when a motor carrier has three or more roadside 
inspections in the 12 months prior to the review, or three vehicles 
inspected at the time of the CR, or a combination of the two. If the 
OOS rate is 34 percent or greater, the initial factor rating is 
conditional. The reason for the three inspections is that the agency 
wanted the vehicle OOS rates to be an aspect of the factor rating for 
as many carriers as possible, but did not want one OOS vehicle 
inspection to impact the factor rating. The vehicle OOS rate for Level 
I (full) inspections has been between 27.9 percent and 36.2 percent for 
the last five fiscal years. Generally, roadside inspections are not 
random. Vehicles that appear to have defects are sometimes selected 
from the traffic stream at scales, or vehicles of carriers that have no 
or few inspections in the MCMIS are selected for inspection. Therefore, 
the average OOS rate based on selected sampling is approximately one-
third of the vehicles inspected. The FHWA believes setting the rate at 
34 per cent for the initial factor rating of conditional is 
appropriate, as a carrier with only one vehicle out of three inspected 
placed OOS will not have the factor rating affected. The FHWA is aware 
that some vehicles receive a cursory inspection at a scale facility, 
which does not produce an inspection report when no defects are 
discovered. The FHWA will consider adjusting the 34 percent first 
indicator should there be a significant change in the Level I vehicle 
OOS rate.
    The second indicator in the vehicle factor is the compliance with 
the Part 396 regulatory requirements. If noncompliance with an 
``acute'' regulation or a pattern of noncompliance with a ``critical'' 
regulation is discovered, the initial

[[Page 60039]]

conditional factor rating will be lowered to unsatisfactory.
    For carriers with fewer than three inspections in the 12 months 
prior to the CR, or three vehicles inspected at the time of the review, 
or a combination of the two totaling three, the vehicle factor will be 
evaluated on the basis of compliance with ``acute'' and ``critical'' 
regulations. This is the same method for evaluating the other 
regulatory factors.

Selection of Records for Review

    A number of the commenters reiterated that the FHWA should sample 
records randomly for safety rating purposes, although they agreed that 
targeted selection of records is appropriate for enforcement purposes. 
They cited studies of the way the FHWA selects records for CRs, and 
concluded that the selection method ``does not yield a representative 
picture of the state of the carrier's safety record.'' They suggest 
that for rating purposes the information should be generated by a 
review in which motor carrier records would be examined on a purely 
random basis, according to generally accepted statistical practices, in 
order to present a fair picture of the carrier's safety compliance in a 
broad context. One commenter believes this will remove some of the 
alleged subjectivity from the current system. Another commenter 
suggests the FHWA go beyond a random sample requirement for CRs and 
give the carrier the option of substituting a 100 percent universal 
sample, probably in the form of electronic records.
    One commenter quoted a recent memorandum from OMC's Office of Field 
Operations to the Regional Directors which indicates that ``all 
references to the `International Standard of Sampling' have been 
removed from the Field Operations Manual.'' The commenter's concern was 
that this action ``is inconsistent with both the interim final rule and 
the notice of proposed rulemaking,'' which indicated that the FHWA 
currently uses and proposes this standard.
    The International Brotherhood of Teamsters (IBT) noted that the May 
28,1997, NPRM did address the sampling issues, and it found the reasons 
supporting the current sampling methodology persuasive. The IBT also 
stated that the proper objective is to focus scarce enforcement 
resources where the problems are most likely to occur.
    The FHWA has carefully considered these comments and believes it is 
in the best interest of public safety to continue to focus its limited 
resources on drivers and vehicles most likely to be in violation of the 
regulations. The overall safety posture of the motor carrier is not 
being measured during the CR, rather the ``adequacy of the carrier's 
safety management controls'' is being assessed pursuant to Sec. 385.5. 
The references to the International Standard of Sampling have been 
removed from the Field Operations Training Manual, as the FHWA is 
making it very clear that the sampling chart, which has not been 
changed, is intended only for purposes of determining the minimum 
number of records to be reviewed, depending on the size of the carrier. 
The agency does not want to give the false impression that full-scale 
random sampling procedures are being used. Motor carriers are equally 
able to use the same indicators the FHWA uses when the carriers are 
monitoring the performance of their drivers and vehicles to assure 
compliance with the FMCSRs and HMRs. It is important to note that a 
satisfactory safety rating is only a passing grade and that full 
compliance with all of the safety regulations should be the objective 
of every carrier and every driver. It is also the best way to avoid a 
rating with adverse consequences to the carrier's operations.

Opportunity To Challenge a Rating

    A registered practitioner and regulatory analyst recommended that 
there should be a procedure to enable a motor carrier that challenges a 
safety rating to obtain a stay of the effectiveness of that rating 
until the challenge has been heard and decided. The TLA recommended 
that the carrier have a means of correcting inaccurate information 
before the safety rating is issued. These recommendations are 
consistent with proposals made in response to the April 29,1996, NPRM 
to amend the FHWA's rules of practice for motor carrier proceedings. 
The NPRM proposed that motor carriers receive a ``Notice of Proposed 
Rating'' before a safety rating was issued (61 FR 18866,18884). The 
comments overwhelmingly supported that proposal.
    One State enforcement agency argued that, ``in the interest of the 
traveling public,'' the 45-day grace period for passenger and hazardous 
material carriers that receive an unsatisfactory safety rating should 
be waived and the rating should become effective immediately. The MCSA 
of 1990 requires that motor carriers be afforded 45 days after receipt 
of an unsatisfactory safety rating before the prohibition against 
transportation becomes effective. The National Automobile Dealers 
Association (NADA) was satisfied that carriers are afforded reasonable 
due process. The AHAS strenuously opposed the suppression of the rating 
results during the 45-day challenge period, which, of course, would 
defeat the purpose of the provision, i.e., to afford the opportunity to 
be heard before a potentially damaging judgment is rendered.
    The FHWA has considered these comments and is amending Sec. 385.11, 
Notification of a safety rating, to incorporate a notice-of-rating 
procedure for all less than satisfactory ratings. A proposed safety 
rating of unsatisfactory or conditional will become the final rating 45 
days after the date the notice of proposed safety rating is received by 
the motor carrier, unless the carrier petitions for a review and the 
petition is granted. The proposed-rating procedure parallels the 
requirement in the MCSA of 1990 that a motor carrier receiving an 
unsatisfactory safety rating be given 45 days to improve its rating 
before the ban on the transportation of hazardous materials and 
passengers takes effect. It eliminates a distinction between carriers 
based on type of operation by giving advance notice of the proposed 
adverse rating in all cases. This will afford all carriers the 
opportunity to be heard during that period before consequences attach. 
This provision was published for notice and comment on April 29, 1996 
(61 FR 18866, 18884) and was welcomed by virtually all of those who 
commented on it. Under the circumstances, the agency believes that a 
supplemental notice of proposed rulemaking to republish the proposal 
under this docket would be superfluous and is therefore unnecessary 
under the Administrative Procedure Act.
    As a result of amending Sec. 385.11, related sections in Part 385 
were also revised to incorporate those changes.

Point Assessment for Violations of ``Acute'' and ``Critical'' 
Regulations

    One commenter wanted all of the factor 3 (Hours of Service) 
``critical' regulations to be aggregated to meet the 10 percent pattern 
definition when violations are discovered. For example, violations of 
the 10-hour rule and the 70-hour rule would be treated as part of the 
same pattern. Another commenter agreed with the higher weighting of 
patterns of factor 3 ``critical'' regulations. Another commenter stated 
that the motor carrier should not be penalized for willful hours of 
service violations by its drivers.
    A number of commenters argued that patterns of violations of 
``critical'' hours of service regulations should not be assessed two 
points, as they did not believe existing research establishes a causal 
relationship between those

[[Page 60040]]

violations and accidents. Another commenter stated that the current 
policy of two points for hours of service violations is one of 
``absolute liability for hours of service violations'' and is 
irrational.
    The ODOT/MCTB stated that although ``recent studies indicate time 
of day and the amount and quality of rest may be more critical factors 
than driving hours, and we are still obligated to enforce the current 
regulation to ensure an optimum level of performance.'' The commenter 
does not believe that doubling the points for factor 3 is appropriate 
unless there is a violation of cumulative on-duty time and 
falsification of records for the purpose of concealing excessive on-
duty time. The ATA noted that several fatigue related studies which 
were placed in the docket as supplemental information, show that there 
is no simple way to measure fatigue. This is further evidence, the ATA 
wrote, that the connection between hours of service violations, fatigue 
and accidents is extremely complex and not fully understood. Thus, the 
ATA believes it would be inappropriate to give twice the weight to 
hours of service violations. The IBT agreed with the FHWA's proposal to 
retain a higher weighting factor for violations of Part 395 
``critical'' regulations.
    After careful consideration of the comments, the FHWA remains 
convinced that the current regulations do have an impact in preventing 
the risks of driver fatigue and that they must be enforced until new 
regulations are developed. There have not been any studies that have 
discounted time on task as a significant contributor to fatigue. The 
observations of the ODOT/MCTB and the ATA about the complexity of the 
connection between hours of service violations, fatigue, and accidents, 
do not provide a rational basis for rulemaking changes. Moreover, there 
are no ``acute'' regulations in Part 395 (Hours of Service). Thus, to 
have a rating of less than satisfactory in factor 3, a motor carrier 
must have demonstrated a pattern of noncompliance with a ``critical'' 
regulation. The FHWA believes that motor carriers with effective safety 
management controls should be able to maintain a noncompliance rate of 
less than 10 percent for any of the Part 395 ``critical'' regulations. 
Therefore, until the ongoing rulemaking efforts to better regulate 
fatigue are concluded, the FHWA believes it is important to continue to 
assign two points for a pattern of violations of a Part 395 
``critical'' regulation.

Rating Factors

    One commenter suggested that the accident factor have more weight 
than the other factors. Another commenter believes that until research 
is conclusive that one factor has a more significant impact on safety 
compared to the others, equal weight should be given to each factor. 
This difference in the commenters' responses is indicative of the 
problem the FHWA faces. While an accident is unquestionably a more 
serious event than any particular regulatory violation, there is good 
reason to believe that regulatory violations are causally related to 
accidents. The 1988 workgroup which developed the six factors in the 
SFRM was unable to determine that any of the six factors was more 
important to safety fitness than any other, and each factor was 
therefore given equal weight. (Although the Operations factor includes 
a double-weighting of patterns of violations of Part 395 ``critical'' 
regulations, a pattern requires that at least ten percent of the 
records of duty reviewed be in violation. During virtually all CRs a 
minimum of at least one hundred fifty RODS are reviewed for compliance 
with Part 395 ``critical'' regulations. Carriers with adequate safety 
management controls will be able to keep the rate of noncompliance 
under ten percent for any of these ``critical'' regulations. The only 
regulatory control on fatigue is the current hours of service 
requirements. The fact that a ``pattern'' of violations cannot occur 
unless at least ten percent of the RODS checked fail to comply with the 
regulations; that Part 395 includes no ``acute'' regulations; and that 
at least 150 RODS are typically reviewed, virtually eliminating the 
possibility of statistical accidents--all of these tend to balance the 
double weighting of patterns of violations of Part 395, resulting in a 
factor with roughly the same weight as any other. In the absence of 
clear evidence that one or more of the rating factors has a greater 
impact on safety or is a better index of the carrier's safety 
management controls, the FHWA has concluded that it must continue to 
place equal weight on each of the factors.

Safety Profiles

    A number of the commenters were concerned about the accuracy of the 
information in the carrier profiles. Two commenters wanted the carrier 
to be presented in advance of the CR with ``a record of violations upon 
which an auditor intends to rely, so that the carrier has an 
opportunity to protect and defend its record and identify any 
inaccuracies before its safety performance is judged.'' They also were 
concerned about the timeliness of the data and wanted stale violations 
removed from the carrier's record. Two commenters suggested that 
carriers be provided a continuing opportunity to challenge the accuracy 
of the entries in their carrier profiles, and a process to correct the 
profiles when errors are discovered. They stated that it is ``virtually 
impossible to get a profile corrected under the current system.''
    Motor carriers have access to their carrier profiles in the MCMIS, 
thus, there is little justification for presenting motor carriers in 
advance of the CR with the information in their carrier profile. The 
FHWA has consistently recommended that when errors from a State source 
are discovered in a motor carrier's safety profile, they should be 
brought to the attention of the State that performed the inspection or 
entered invalid or incorrect information into Safetynet. The FHWA is 
aware of only several instances where a State, when apprised of an 
error by a motor carrier, was unable or unwilling to correct the error. 
If motor carriers are unable to resolve the discrepancy with the State, 
they should contact the OMC Office of Motor Carrier Information 
Analysis (telephone (202) 366-4039). This office will work with the 
State, or if appropriate, correct the error in the safety profile on 
its own initiative. The FHWA continues to work with its State partners 
to improve the quality of the data in motor carrier safety profiles.

Implementation of Proposed SFRM

    A number of the commenters opposed the implementation of the 
proposed SFRM, which they viewed as a ministerial task to comply with 
the findings of the Court in the MST Express case. Several of these 
commenters referred to the June 18, 1997, Motor Carrier Safety Audit 
and Rating Forum sponsored by the ATA, which they stated was held to 
build a consensus on the future of the safety rating process. It 
concluded that the current system must be replaced with a fairer, more 
uniform performance-based system.
    The ATA wanted the ``new era'' concept of safety performance to be 
based less on regulatory compliance and more on ``performance 
measurements,'' e.g., accident rates, driver and vehicle OOS rates, 
driver traffic convictions, and violations of OOS orders. Other 
commenters agreed.
    The ODOT/MCTB commented that, ``as proposed, the MCSFR [motor 
carrier safety fitness rating] methodology represents the best 
collection of safety information for a motor carrier currently

[[Page 60041]]

available.'' It stated that ``the fact that only `acute' and `critical' 
regulations affect the safety rating adds further credibility to the 
safety rating process. It is Oregon's opinion that the dreaded `paper 
work' violations are not included in either the `acute' or `critical' 
regulations.'' The IBT also recommended that the FHWA adopt the SFRM as 
proposed.
    The FHWA believes that the proposed SFRM establishes a fair and 
reasonable procedure to decide the safety fitness of owners and 
operators of CMVs. It also meets the statutory mandate (49 U.S.C. 
31144) because it includes:
    (a) specific, initial and continuing requirements to be met by the 
owners, operators, and other persons to prove safety fitness;
    (b) a means of deciding whether the owners, operators, and other 
persons meet the safety fitness requirements in (a); and
    (c) specific time deadlines for action by the FHWA in making 
fitness determinations.

Miscellaneous

    Several sections in Part 385 are amended to correct previous 
technical errors. The definition of ``Safety review'' in Sec. 385.3 is 
removed since Safety Reviews were discontinued as of October 1, 1994. 
The definitions of Conditional safety rating and Unsatisfactory safety 
rating in Sec. 385.3 are revised to include references to Sec. 385.5 
(i) through (k), dealing with hazardous materials and accidents. These 
subsections were inadvertently omitted when the final rule was 
published on December 19, 1988 (53 FR 50961). Section 385.9 is revised 
to include a subsection (b) to meet the requirement in 49 U.S.C. 
31144(a)(1)(C) that there be specific time deadlines for action by the 
Secretary in making fitness decisions.
    Section 385.17 is revised in a number of ways. The FHWA published a 
proposed revision of Sec. 385.17 for notice and comment under FHWA 
Docket No. MC-96-18 on April 29, 1996 (61 FR 18866, 18884), where it 
was designated as Sec. 362.107. In addition to explaining more clearly 
the process to request a safety rating change based on corrective 
actions taken, that provision would have given carriers whose request 
was denied new rights to administrative review. Commenters favored this 
change almost unanimously. In order to make these rights available to 
motor carriers as soon as possible, the proposed provision designated 
as Sec. 362.107 in the April 29 NPRM has been incorporated into this 
final rule, with minor changes, as Sec. 385.17. Many parties concerned 
about the safety rating system submitted comments in response to the 
April 29, 1996, NPRM and the May 28, 1997, NPRM that opened this 
docket. Because the amended version of Sec. 385.17 has already been 
published for notice and comment, though under a different docket and 
with a different section number, the FHWA finds good cause (pursuant to 
5 U.S.C. 553(b)(B)) to adopt Sec. 385.17, and the related amendments to 
Secs. 385.11, and 385.15, which were also published in the April 29 
NPRM, without re-publishing them under this docket as a Supplemental 
NPRM.
    The current appendix to Part 385 is redesignated as appendix A. The 
Explanation of Safety Rating Process is added as appendix B. Changes to 
appendix B from the appendix in the NPRM are a result of using several 
years accident rates instead of one year for the accident rates in the 
accident rating factor, and editorial changes for clarity. Appendix B 
is further changed by substituting ``proposed rating'' for 
``anticipated rating'', to conform with the procedure in 
Sec. 385.11(b).

Rulemaking Analyses and Notices

    For the reasons given below, the FHWA finds good cause to make this 
final rule effective less than 30 days after the date of publication. 
The interim final rule adopting a Safety Fitness Rating Methodology 
(SFRM) was promulgated on May 28, 1997 (62 FR 22807), and will expire 
on November 28, 1997. That rule allows the FHWA to assign safety 
ratings to motor carriers which use CMVs to transport 15 or more 
passengers, including the driver, or hazardous materials in quantities 
that require placarding under DOT regulations. The final rule published 
today does not change the existing motor carrier safety requirements or 
impose new obligations on motor carriers. It merely sets forth an SFRM 
the FHWA will use to evaluate motor carriers' compliance with the 
standards and factors specified in 49 C.F.R. 385.5 and 385.7. 
Furthermore, it gives carriers 45 days after notification of a proposed 
conditional or unsatisfactory rating before the rating takes effect. 
During that time, motor carriers will have an opportunity to correct 
deficiencies in their compliance with Part 385 or to point out to the 
agency any material factual issues in dispute. No such grace period is 
available under the current interim final rule. Carriers rated less 
than satisfactory under the SFRM will therefore have at least 45 days 
after the effective date of this rule before the rating takes effect. 
In view of these facts, and because the demands of public safety and a 
specific statutory mandate (49 U.S.C. 5113) require the agency to 
continue rating passenger and hazardous materials carriers without 
interruption, the FHWA hereby finds good cause pursuant to 5 U.S.C. 
553(d)(3) to make this rule effective on November 28, 1997.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866. No 
serious inconsistency or interference with another agency's actions or 
plans is likely to result, and it is unlikely that this regulatory 
action will have an annual effect on the economy of $100 million or 
more. This final rule is administrative in nature in that it neither 
imposes new requirements upon the motor carrier industry nor alters the 
August 16, 1991, interim final rule implementing the provisions of 49 
U.S.C. 5113. The FHWA does not anticipate any new economic impacts as a 
result of this rulemaking. This rule would not impose any costs on 
motor carriers in addition to those assessed in the Regulatory 
Evaluation and Regulatory Flexibility Analysis prepared in support of 
the 1988 final rule. (The 1991 interim final amended the 1988 rule in 
ways that the FHWA believes had minimal economic impact on motor 
carriers.)
    The existing rating factors are used to evaluate the degree to 
which the motor carrier complies with the regulations and add no costs 
because the carrier is already required to comply. Compliance with 
regulations, however, is only a surrogate for actual safety 
performance. The addition of the accident factor introduces a direct 
measure of performance into the equation. In 1988, this factor was not 
considered as having a cost consequence because the effect of a 
negative rating resulting from substantially higher accidents than the 
norm would be virtually identical to the impact on the carrier's 
business that would flow from public knowledge of its poor safety 
performance.
    The impact resulting from a negative rating generally relates to 
knowledge of the rating by shipper or insurer. If those same entities 
know of the unusually high accident rate, the FHWA believes the 
consequences would or should be approximately the same.
    Considering all recordable accidents instead of only preventable 
recordable accidents will have the same sort of impact. Nevertheless, 
the FHWA believes that this is a significant regulatory action within 
the meaning of the Department of Transportation's

[[Page 60042]]

regulatory policies and procedures because there is significant public 
interest in this action.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small entities 
and has determined that it will not have a significant economic impact 
on a substantial number of small entities. The motor carriers 
economically impacted by this rulemaking will be those who are rated as 
unsatisfactory and fail to take appropriate actions to have their 
rating upgraded. In the past, relatively few small motor carriers had 
been affected by the statutory consequences of an unsatisfactory, and 
there is no reason to believe that those impacts will increase in any 
way by this action.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that this rulemaking does not have sufficient Federalism implications 
to warrant the preparation of a Federalism assessment. These safety 
requirements do not directly preempt any State law or regulation, and 
no additional costs or burdens would be imposed on the States as a 
result of this action.
    Furthermore, the State's ability to discharge traditional State 
governmental functions would not be affected by this rulemaking.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities do not apply to this program.

Paperwork Reduction Act

    This action does not contain a collection of information 
requirement for the purposes of the Paperwork Reduction Act of 1995, 44 
U.S.C. 3501-3520.

National Environmental Policy Act

    The agency has analyzed this rulemaking for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has 
determined that this action would not have any effect on the quality of 
the environment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 49 CFR Part 385

    Highway safety, Highways and roads, Motor carriers, Motor vehicle 
safety, and Safety fitness procedures.

    Issued on: October 31, 1997.
Gloria Jeff,
Acting Administrator.

    In consideration of the foregoing, the FHWA is amending title 49, 
Code of Federal Regulations, Chapter III, Part 385 as set forth below:

PART 385--SAFETY FITNESS PROCEDURES

    1. The authority citation for part 385 continues to read as 
follows:

    Authority: 49 U.S.C. 104, 504, 521(b)(5)(A), 5113, 31136, 31144, 
and 31502; 49 CFR 1.48.

    2. In Sec. 385.3, under the definition ``reviews'', remove and 
reserve paragraph (2) ``safety review''; and under the definition 
``safety ratings'', revise paragraphs (2) ``conditional safety rating'' 
and (3) ``unsatisfactory safety rating'' to read as follows:


Sec. 385.3  Definitions.

* * * * *
    Reviews. * * *
    (1) * * *
    (2) [Reserved]
    (3) * * *
    Safety ratings: (1) * * *
    (2) Conditional safety rating means a motor carrier does not have 
adequate safety management controls in place to ensure compliance with 
the safety fitness standard that could result in occurrences listed in 
Sec. 385.5 (a) through (k).
    (3) Unsatisfactory safety rating means a motor carrier does not 
have adequate safety management controls in place to ensure compliance 
with the safety fitness standard which has resulted in occurrences 
listed in Sec. 385.5 (a) through (k).
* * * * *
    3. Section 385.9 is revised to read as follows:


Sec. 385.9  Determination of a safety rating.

    (a) Following a compliance review of a motor carrier operation, the 
FHWA, using the factors prescribed in Sec. 385.7 as computed under the 
Safety Fitness Rating Methodology set forth in appendix B of this part, 
shall determine whether the present operations of the motor carrier are 
consistent with the safety fitness standard set forth in Sec. 385.5, 
and assign a safety rating accordingly.
    (b) Unless otherwise specifically provided in this part, a safety 
rating will be issued to a motor carrier within 30 days following the 
completion of a compliance review.
    4. Section 385.11 is revised to read as follows:


Sec. 385.11  Notification of a safety rating.

    (a) Except as provided elsewhere in this section, written 
notification of the safety rating will be provided to a motor carrier 
as soon as practicable after assignment of the rating, but not later 
than 30 days after the review that produced the rating.
    (b) Before a safety rating of unsatisfactory or conditional, is 
assigned to any motor carrier, the FHWA will issue a notice of proposed 
safety rating. The notice of proposed safety rating will list the 
deficiencies discovered during the review of the motor carrier's 
operations, for which corrective actions must be taken. A proposed 
conditional safety rating (which is an improvement of an existing 
unsatisfactory safety rating) becomes effective as soon as it issued 
from Washington, D.C., and the carrier may also avail itself of relief 
under the Sec. 385.15, Administrative Review and Sec. 385.17, Change to 
safety rating based on corrective actions.
    (c) A notice of a proposed safety rating of unsatisfactory will 
indicate that, if the unsatisfactory rating becomes final, the motor 
carrier will be subject to the provisions of Sec. 385.13, which 
prohibit motor carriers rated unsatisfactory from transporting 
hazardous materials or passengers, and other consequences that may 
result from such rating.
    (d) Except as provided in Sec. 385.17, a proposed safety rating 
issued pursuant to paragraph (b) of this section will become the motor 
carrier's final safety rating 45 days after the date the notice of 
proposed safety rating is received by the motor carrier.
    5. Section 385.13 is revised to read as follows:


Sec. 385.13  Unsatisfactory rated motor carriers--prohibition on 
transportation of hazardous materials and passengers; ineligibility for 
Federal contracts.

    (a) A motor carrier rated unsatisfactory is prohibited from 
operating a commercial motor vehicle to transport--

[[Page 60043]]

    (1) Hazardous materials for which vehicle placarding is required 
pursuant to part 172 of chapter 1 of this title; or
    (2) More than 15 passengers, including the driver.
    (b) A motor carrier subject to the provisions of paragraph (a) of 
this section is ineligible to contract or subcontract with any Federal 
agency for transportation of the property or passengers referred to in 
paragraphs (a)(1) and (a)(2) of this section.
    (c) Penalties. When a carrier subject to the prohibitions in 
paragraph (a) of this section is known to transport the property or 
passengers referred to therein, an order will be issued placing those 
operations out of service. Any motor carrier that operates commercial 
motor vehicles in violation of this section will be subject to the 
penalty provisions listed in part 386 of this chapter.
    6. Section 385.15 is revised to read as follows:


Sec. 385.15  Administrative review.

    (a) Within the 45 day notice period provided in Sec. 385.11(d), or 
within 45 days after denial of a request for a change in rating as 
provided in Sec. 385.17(g), the motor carrier may petition the FHWA for 
administrative review of a proposed or final safety rating by 
submitting a written request to the Director, Office of Motor Carrier 
Field Operations, 400 Seventh Street, SW., Washington DC 20590.
    (b) The petition must state why the proposed safety rating is 
believed to be in error and list all factual and procedural issues in 
dispute. The petition may be accompanied by any information or 
documents the motor carrier is relying upon as the basis for its 
petition.
    (c) The Director, Office of Motor Carrier Field Operations, may 
request the petitioner to submit additional data and attend a 
conference to discuss the safety rating. Failure to provide the 
information requested or attend the conference may result in dismissal 
of the petition.
    (d) The petitioner shall be notified in writing of the decision on 
administrative review. The notification will occur within 30 days after 
receipt of a petition from a hazardous materials or passenger motor 
carrier.
    (e) If the decision on administrative review results in a final 
rating of unsatisfactory for a hazardous materials or passenger motor 
carrier, the decision shall be accompanied by an appropriate out-of-
service order.
    (f) All other decisions on administrative review of ratings 
constitute final agency action. Thereafter, improvement in the rating 
may be obtained under Sec. 385.17 of this part.
    7. Section 385.17 is revised to read as follows:


Sec. 385.17  Change to safety rating based on corrective actions.

    (a) Within the 45-day period specified in Sec. 385.11(d), or at any 
time after a rating has become final, a motor carrier may request a 
change to a proposed or final safety rating based on evidence that 
corrective actions have been taken and that its operations currently 
meet the safety standard and factors specified in Sec. 385.9.
    (b) A request for a change must be made, in writing, to the 
Regional Director, Office of Motor Carriers, for the FHWA Region in 
which the carrier maintains its principal place of business, and must 
include a written description of corrective actions taken and other 
documentation that may be relied upon as a basis for the requested 
change to the proposed rating.
    (c) The final determination on the request for change will be based 
upon the documentation submitted and any additional investigation 
deemed necessary.
    (d) The filing of a request for change to a proposed rating under 
this section does not stay the 45-day period established in 
Sec. 385.11(d), after which a proposed safety rating becomes final. If 
the motor carrier has submitted evidence that corrective actions have 
been taken pursuant to this section and a final determination cannot be 
made within the 45-day period, the period before the proposed safety 
rating becomes effective may be extended for up to 10 days at the 
discretion of the Regional Director.
    (e) If it is determined that the motor carrier has taken the 
corrective actions required and that its operations currently meet the 
safety standard and factors specified in Sec. 385.9, the motor carrier 
will be provided with written notification that the proposed rating 
will not be assigned, or, if already assigned, rescinded.
    (f) If it is determined that the motor carrier has not taken all 
the corrective actions required or that its operations still fail to 
meet the safety standards and factors specified in Sec. Sec. 385.5 and 
385.7, the motor carrier shall be provided with written notification 
that its request has been denied and that the proposed safety rating 
will become final pursuant to Sec. 385.11(d), or that a safety rating 
currently in effect will not be changed.
    (g) Any motor carrier whose request for change is denied pursuant 
to paragraph (f) of this section may petition for administrative review 
pursuant to Sec. 385.15 within 45 days of the denial of the request for 
rating change. If the proposed rating has become final, it shall remain 
in effect during the period of any administrative review unless stayed 
by the reviewing official.
    8. Section 385.19 is revised to read as follows:


Sec. 385.19  Safety fitness information.

    (a) Final ratings will be made available to other Federal and State 
agencies in writing, telephonically or by remote computer access.
    (b) The final safety rating assigned to a motor carrier will be 
made available to the public upon request. Any person requesting the 
assigned rating of a motor carrier shall provide the FHWA with the 
motor carrier's name, principal office address, and, if known, the DOT 
number or the ICC docket number, if any.
    (c) Requests shall be addressed to the Office of Motor Carrier 
Information Management and Analysis, HIA-1, Federal Highway 
Administration, 400 Seventh Street, SW., Washington, D.C. 20590.
    (d) Oral requests by telephone to (800) 832-5660 will be given an 
oral response.
    9. Part 385 is amended by revising appendix B to read as follows:

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

    (a) Section 215 of the Motor Carrier Safety Act of 1984 (49 
U.S.C. 31144) directed the Secretary of Transportation to establish 
a procedure to determine the safety fitness of owners and operators 
of commercial motor vehicles operating in interstate or foreign 
commerce. The Secretary, in turn, delegated this responsibility to 
the Federal Highway Administration (FHWA).
    (b) As directed, FHWA promulgated a safety fitness regulation, 
entitled ``Safety Fitness Procedures,'' which established a 
procedure to determine the safety fitness of motor carriers through 
the assignment of safety ratings and established a ``safety fitness 
standard'' which a motor carrier must meet to obtain a satisfactory 
safety rating.
    (c) To meet the safety fitness standard, a motor carrier must 
demonstrate to the FHWA that it has adequate safety management 
controls in place which function effectively to ensure acceptable 
compliance with the applicable safety requirements. A ``safety 
fitness rating methodology'' (SFRM) was developed by the FHWA, which 
uses data from compliance reviews (CRs) and roadside inspections to 
rate motor carriers.
    (d) The safety rating process developed by FHWA's Office of 
Motor Carriers is used to:
    1. Evaluate safety fitness and assign one of three safety 
ratings (satisfactory, conditional or unsatisfactory) to motor 
carriers operating in interstate commerce. This process conforms to 
49 CFR 385.5, Safety fitness

[[Page 60044]]

standard, and Sec. 385.7, Factors to be considered in determining a 
safety rating.
    2. Identify motor carriers needing improvement in their 
compliance with the Federal Motor Carrier Safety Regulations 
(FMCSRs) and applicable Hazardous Material Regulations (HMRs). These 
are carriers rated unsatisfactory or conditional.

I. Source of Data for Rating Methodology

    (a) The FHWA's rating process is built upon the operational tool 
known as the CR. This tool was developed to assist Federal and State 
safety specialists in gathering pertinent motor carrier compliance 
and accident information.
    (b) The CR is an in-depth examination of a motor carrier's 
operations and is used (1) to rate unrated motor carriers, (2) to 
conduct a follow-up investigation on motor carriers rated 
unsatisfactory or conditional as a result of a previous review, (3) 
to investigate complaints, or (4) in response to a request by a 
motor carrier to reevaluate its safety rating. Documents such as 
those contained in driver qualification files, records of duty 
status, vehicle maintenance records, and other records are 
thoroughly examined for compliance with the FMCSRs and HMRs. 
Violations are cited on the CR document. Performance-based 
information, when available, is utilized to evaluate the carrier's 
compliance with the vehicle regulations. Recordable accident 
information is also collected.

II. Converting CR Information Into a Safety Rating

    (a) The FHWA gathers information through an in-depth examination 
of the motor carrier's compliance with identified ``acute'' or 
``critical'' regulations of the FMCSRs and HMRs.
    (b) Acute regulations are those identified as such where 
noncompliance is so severe as to require immediate corrective 
actions by a motor carrier regardless of the overall safety posture 
of the motor carrier. An example of an acute regulation is 
Sec. 383.37(b), allowing, requiring, permitting, or authorizing an 
employee with more than one Commercial Driver's License (CDL) to 
operate a commercial motor vehicle. Noncompliance with 
Sec. 383.37(b) is usually discovered when the motor carrier's driver 
qualification file reflects that the motor carrier had knowledge of 
a driver with more than one CDL, and still permitted the driver to 
operate a commercial motor vehicle. If the motor carrier did not 
have such knowledge or could not reasonably be expected to have such 
knowledge, then a violation would not be cited.
    (c) Critical regulations are those identified as such where 
noncompliance relates to management and/or operational controls. 
These are indicative of breakdowns in a carrier's management 
controls. An example of a critical regulation is Sec. 395.3(a)(1), 
requiring or permitting a driver to drive more than 10 hours.
    (d) The list of the acute and critical regulations which are 
used in determining safety ratings is included at the end of this 
document.
    (e) Noncompliance with acute regulations and patterns of non-
compliance with critical regulations are quantitatively linked to 
inadequate safety management controls and usually higher than 
average accident rates. The FHWA has used noncompliance with acute 
regulations and patterns of noncompliance with critical regulations 
since 1989 to determine motor carriers' adherence to the Safety 
fitness standard in Sec. 385.5.
    (f) The regulatory factors, evaluated on the basis of the 
adequacy of the carrier's safety management controls, are (1) Parts 
387 and 390; (2) Parts 382, 383 and 391; (3) Parts 392 and 395; (4) 
Parts 393 and 396 when there are less than three vehicle inspections 
in the last 12 months to evaluate; and (5) Parts 397, 171, 177 and 
180.
    (g) For each instance of noncompliance with an acute regulation 
or each pattern of noncompliance with a critical regulation during 
the CR, one point will be assessed. A pattern is more than one 
violation. When a number of documents are reviewed, the number of 
violations required to meet a pattern is equal to at least 10 
percent of those examined.
    (h) However, each pattern of noncompliance with a critical 
regulation relative to Part 395, Hours of Service of Drivers, will 
be assessed two points.

A. Vehicle Factor

    (a) When a total of three or more inspections are recorded in 
the Motor Carrier Management Information System (MCMIS) during the 
twelve months prior to the CR or performed at the time of the 
review, the Vehicle Factor (Parts 393 and 396) will be evaluated on 
the basis of the Out-of-Service (OOS) rates and noncompliance with 
acute regulations and/or a pattern of noncompliance with critical 
regulations. The results of the review of the OOS rate will affect 
the Vehicle Factor rating as follows:
    1. If a motor carrier has three or more roadside vehicle 
inspections in the twelve months prior to the carrier review, or 
three vehicles inspected at the time of the review, or a combination 
of the two totaling three or more, and the vehicle OOS rate is 34 
percent or greater, the initial factor rating will be conditional. 
The requirements of Part 396, Inspection, Repair, and Maintenance, 
will be examined during each review. The results of the examination 
could lower the factor rating to unsatisfactory if noncompliance 
with an acute regulation or a pattern of noncompliance with a 
critical regulation is discovered. If the examination of the Part 
396 requirements reveals no such problems with the systems the motor 
carrier is required to maintain for compliance, the Vehicle Factor 
remains conditional.
    2. If a carrier's vehicle OOS rate is less than percent, the 
initial factor rating will be satisfactory. If noncompliance with an 
acute regulation or a pattern of noncompliance with a critical 
regulation is discovered during the examination of Part 396 
requirements, the factor rating will be lowered to conditional. If 
the examination of Part 396 requirements discovers no such problems 
with the systems the motor carrier is required to maintain for 
compliance, the Vehicle Factor remains satisfactory.
    (b) Nearly two million vehicle inspections occur on the roadside 
each year. This vehicle inspection information is retained in the 
MCMIS and is integral to evaluating motor carriers' ability to 
successfully maintain their vehicles, thus preventing them from 
being placed OOS during roadside inspections. Since many of the 
roadside inspections are targeted to visibly defective vehicles and 
since there are a limited number of inspections for many motor 
carriers, the use of that data is limited. Each CR will continue to 
have the requirements of Part 396, Inspection, Repair, and 
Maintenance, reviewed as indicated by the above explanation.

B. Accident Factor

    (a) In addition to the five regulatory rating factors, a sixth 
factor is included in the process to address the accident history of 
the motor carrier. This factor is the recordable accident rate which 
the carrier has experienced during the past 12 months. Recordable 
accident, as defined in 49 CFR 390.5, means an accident involving a 
commercial motor vehicle operating on a public road in interstate or 
intrastate commerce which results in a fatality; bodily injury to a 
person who, as a result of the injury, immediately receives medical 
treatment away from the scene of the accident; one or more motor 
vehicles incurring disabling damage as a result of the accident 
requiring the motor vehicle to be transported away from the scene by 
a tow truck or other motor vehicle.
    (b) Recordable accidents per million miles were computed for 
each CR performed in Fiscal Years 1994,1995 and 1996. The national 
average for all carriers rated was 0.747, and .839 for carriers 
operating entirely within the 100 air mile radius.
    (c) Experience has shown that urban carriers, those motor 
carriers operating primarily within a radius of less than 100 air 
miles (normally in urban areas) have a higher exposure to accident 
situations because of their environment and normally have higher 
accident rates.
    (d) The recordable accident rate will be used to rate Factor 6, 
Accident. It will be used only when a motor carrier incurs two or 
more recordable accidents occurred within the 12 months prior to the 
CR. An urban carrier (a carrier operating entirely within a radius 
of 100 air miles) with a recordable accident rate greater than 1.7 
will receive an unsatisfactory rating for the accident factor. All 
other carriers with a recordable accident rate greater than 1.5 will 
receive an unsatisfactory factor rating. The rates are a result of 
roughly doubling the national average accident rate for each type of 
carrier rated in Fiscal Years 1994, 1995 and 1996.
    (e) The FHWA will continue to consider preventability when a 
motor carrier contests a rating by presenting compelling evidence 
that the recordable rate is not a fair means of evaluating its 
accident factor. Preventability will be determined according to the 
following standard: ``If a driver, who exercises normal judgment and 
foresight could have foreseen the possibility of the accident that 
in fact occurred, and avoided it by taking steps within his/her 
control which would not have risked causing another kind of mishap, 
the accident was preventable.''

[[Page 60045]]

C. Factor Ratings

    (a) Parts of the FMCSRs and the HMRs having similar 
characteristics are combined together into five regulatory areas 
called ``factors.''
    (b) The following table shows the five regulatory factors, parts 
of the FMCSRs and HMRs associated with each factor, and the accident 
factor. Factor Ratings are determined as follows:

Factors

Factor 1  General=Parts 387 and 390
Factor 2  Driver=Parts 382, 383 and 391
Factor 3  Operational=Parts 392 and 395
Factor 4  Vehicle=Parts 393 and 396
Factor 5  Haz. Mat.=Parts 397, 171, 177 and 180
Factor 6  Accident Factor=Recordable Rate

``Satisfactory''--if the acute and/or critical=0 points
``Conditional''--if the acute and/or critical=1 point
``Unsatisfactory''--if the acute and/or critical=2 or more points

III. Safety Rating

A. Rating Table

    (a) The ratings for the six factors are then entered into a 
rating table which establishes the motor carrier's safety rating.
    (b) The FHWA has developed a computerized rating formula for 
assessing the information obtained from the CR document and is using 
that formula in assigning a safety rating.

                                        Motor Carrier Safety Rating Table                                       
----------------------------------------------------------------------------------------------------------------
                           Factor ratings                                                                       
---------------------------------------------------------------------            Overall safety rating          
             Unsatisfactory                       Conditional                                                   
----------------------------------------------------------------------------------------------------------------
0.......................................  2 or less.................  SATISFACTORY.                             
0.......................................  more than 2...............  CONDITIONAL.                              
0.......................................  2 or less.................  CONDITIONAL.                              
1.......................................  more than 2...............  UNSATISFACTORY.                           
2 or more...............................  0 or more.................  UNSATISFACTORY.                           
----------------------------------------------------------------------------------------------------------------

B. Proposed Safety Rating

    (a) The proposed safety rating will appear on the CR. The 
following appropriate information will appear after the last entry 
on the CR, MCS-151, Part B.
    ``Your proposed safety rating is SATISFACTORY.''
    Your proposed safety rating is CONDITIONAL.'' The proposed 
rating will become the final rating 45 after you receive this 
notice.

OR

    ``Your proposed safety rating is UNSATISFACTORY.'' The safety 
rating will become the final safety rating 45 days after you receive 
this notice.
    (b) Proposed safety ratings of conditional or unsatisfactory 
will list the deficiencies discovered during the CR for which 
corrective actions must be taken.
    (c) Proposed unsatisfactory safety ratings will indicate that, 
if the unsatisfactory rating becomes final, the motor carrier will 
be subject to the provision of Sec. 385.13, which prohibits motor 
carriers rated unsatisfactory from transporting hazardous materials 
requiring placarding or 15 passengers or more including the driver.

IV. Assignment of Final Rating/Motor Carrier Notification

    When the official rating is determined in Washington, D.C., the 
FHWA notifies the motor carrier in writing of its safety rating as 
prescribed in Sec. 385.11. A proposed conditional safety rating 
(which is an improvement of an existing unsatisfactory rating) 
becomes effective as soon as the official safety rating from 
Washington, D.C. is issued, and the carrier may also avail itself of 
relief under the Sec. 385.15, Administrative Review and Sec. 385.17, 
Change to safety rating based on corrective actions.

V. Motor Carrier Rights to a Change in the Safety Rating

    Under Secs. 385.15 and 385.17, motor carriers have the right to 
petition for a review of their ratings if there are factual or 
procedural disputes, and to request another review after corrective 
actions have been taken. They are the procedural avenues a motor 
carrier which believes its safety rating to be in error may 
exercise, and the means to request another review after corrective 
action has been taken.

VI. Conclusion

    (a) The FHWA believes this ``safety fitness rating methodology'' 
is a reasonable approach for assigning a safety rating which best 
describes the current safety fitness posture of a motor carrier as 
required by the safety fitness regulations (Sec. 385.9). This 
methodology has the capability to incorporate regulatory changes as 
they occur.
    (b) Improved compliance with the regulations leads to an 
improved rating, which in turn increases safety. This increased 
safety is our regulatory goal.

VII. List of Acute and Critical Regulations

Sec. 382.115(c)  Failing to implement an alcohol and/or controlled 
substance testing program. (acute)
Sec. 382.201  Using a driver who has an alcohol concentration of 
0.04 or greater. (acute)
Sec. 382.211  Using a driver who has refused to submit to an alcohol 
controlled substances test required under Part 382. (acute)
Sec. 382.213(b)  Using a driver who has used a controlled substance. 
(acute)
Sec. 382.215  Using a driver who has tested positive for a 
controlled substance. (acute)
Sec. 382.301(a)  Using a driver before the motor carrier has 
received negative pre-employment controlled substance test results. 
(critical)
Sec. 382.303(a)  Failing to conduct post accident testing on driver 
for alcohol and/or controlled substances. (critical)
Sec. 382.305  Failing to implement a random controlled substances 
and/or an alcohol testing program. (acute)
Sec. 382.305(b)(1)  Failing to conduct random alcohol testing at an 
annual rate of not less than 25 percent of the average number of 
driver positions. (critical)
Sec. 382.305(b)(2)  Failing to conduct random controlled substances 
testing at an annual rate of not less than 50 percent of the average 
number of driver positions. (critical)
Sec. 382.309(a)  Using a driver who has not undergone a return-to-
duty alcohol test with a result indicating an alcohol concentration 
of less than 0.02. (acute)
Sec. 382.309(b)  Using a driver who has not undergone a return-to-
duty controlled substances test with a result indicating a verified 
negative result for controlled substances. (acute)
Sec. 382.503  Driver performing safety sensitive function, after 
engaging in conduct prohibited by Subpart B, without being evaluated 
by substance abuse professional, as required by Sec. 382.605. 
(critical)
Sec. 382.505(a)  Using a driver within 24 hours after being found to 
have an alcohol concentration of 0.02 or greater but less than 0.04. 
(acute)
Sec. 382.605(c)(1)  Using a driver who has not undergone a return-
to-duty alcohol test with a result indicating an alcohol 
concentration of less than .02 or with verified negative test 
result, after engaging in conduct prohibited by Part 382 Subpart B. 
(acute)
Sec. 382.605(c)(2)(ii)  Failing to subject a driver who has been 
identified as needing assistance to at least six unannounced follow-
up alcohol and controlled substance tests in the first 12 months 
following the driver's return to duty. (critical)
Sec. 383.23(a)  Operating a commercial motor vehicle without a valid 
commercial driver's license. (critical)
Sec. 383.37(a)  Allowing, requiring, permitting, or authorizing an 
employee with a Commercial Driver's License which is suspended, 
revoked, or canceled by a state or who is disqualified to operate a 
commercial motor vehicle. (acute)
Sec. 383.37(b)  Allowing, requiring, permitting, or authorizing an 
employee with more than one Commercial Driver's License to operate a 
commercial motor vehicle. (acute)
Sec. 383.51(a)  Allowing, requiring, permitting, or authorizing a 
driver to drive who is disqualified to drive a commercial motor 
vehicle. (acute)
Sec. 387.7(a)  Operating a motor vehicle without having in effect 
the required minimum levels of financial responsibility coverage. 
(acute)
Sec. 387.7(d)  Failing to maintain at principal place of business 
required proof of financial responsibility. (critical)
Sec. 387.31(a)  Operating a passenger carrying vehicle without 
having in effect the required minimum levels of financial 
responsibility. (acute)
Sec. 387.31(d)  Failing to maintain at principal place of business 
required proof of financial responsibility for passenger vehicles. 
(critical)
Sec. 390.15(b)(2)  Failing to maintain copies of all accident 
reports required by State or

[[Page 60046]]

other governmental entities or insurers. (critical)
Sec. 390.35  Making, or causing to make fraudulent or intentionally 
false statements or records and/or reproducing fraudulent records. 
(acute)
Sec. 391.11(a)/391.95  Using an unqualified driver, a driver who has 
tested positive for controlled substances, or refused to be tested 
as required. (acute)
Sec. 391.11(b)(6)  Using a physically unqualified driver. (acute)
Sec. 391.15(a)  Using a disqualified driver. (acute)
Sec. 391.45(a)  Using a driver not medically examined and certified. 
(critical)
Sec. 391.45(b)  Using a driver not medically examined and certified 
each 24 months. (critical)
Sec. 391.51(a)  Failing to maintain driver qualification file on 
each driver employed. (critical)
Sec. 391.51(b)(1)  Failing to maintain medical examiner's 
certificate in driver's qualification file. (critical)
Sec. 391.51(c)(1)  Failing to maintain medical examiner's 
certificate in driver's qualification file. (critical)
Sec. 391.51(c)(3)  Failing to maintain inquiries into driver's 
driving record in driver's qualification file. (critical)
Sec. 391.51(d)(1)  Failing to maintain medical examiner's 
certificate in driver's qualification file. (critical)
Sec. 391.87(f)(5)  Failing to retain in the driver's qualification 
file test finding, either ``Negative'' and, if ``Positive'', the 
controlled substances identified. (critical)
Sec. 391.93(a)  Failing to implement a controlled substances testing 
program. (acute)
Sec. 391.99(a)  Failing to require a driver to be tested for the use 
of controlled substances, upon reasonable cause. (acute)
Sec. 391.103(a)  Failing to require a driver-applicant whom the 
motor carrier intends to hire or use to be tested for the use of 
controlled substances as a pre-qualification condition. (critical)
Sec. 391.109(a)  Failing to conduct controlled substance testing at 
a 50% annualized rate. (critical)
Sec. 391.115(c)  Failing to ensure post-accident controlled 
substances testing is conducted and conforms with 49 CFR Part 40. 
(critical)
Sec. 392.2  Operating a motor vehicle not in accordance with the 
laws, ordinances, and regulations of the jurisdiction in which it is 
being operated. (critical)
Sec. 392.4(b)  Requiring or permitting a driver to drive while under 
the influence of, or in possession of, a narcotic drug, amphetamine, 
or any other substance capable of rendering the driver incapable of 
safely operating a motor vehicle. (acute)
Sec. 392.5(b)(1)  Requiring or permitting a driver to drive a motor 
vehicle while under the influence of, or in possession of, an 
intoxicating beverage. (acute)
Sec. 392.5(b)(2)  Requiring or permitting a driver who has consumed 
an intoxicating beverage within 4 hours to operate a motor vehicle. 
(acute)
Sec. 392.6  Scheduling a run which would necessitate the vehicle 
being operated at speeds in excess of those prescribed. (critical)
Sec. 392.9(a)(1)  Requiring or permitting a driver to drive without 
the vehicle's cargo being properly distributed and adequately 
secured. (critical)
Sec. 395.1(i)(1)(i)  Requiring or permitting a driver to drive more 
than 15 hours. (Driving in Alaska.) (critical)
Sec. 395.1(i)(1)(ii)  Requiring or permitting a driver to drive 
after having been on duty 20 hours. (Driving in Alaska.) (critical)
Sec. 395.1(i)(1)(iii)  Requiring or permitting driver to drive after 
having been on duty more than 70 hours in 7 consecutive days. 
(Driving in Alaska.) (critical)
Sec. 395.1(i)(1)(iv)  Requiring or permitting driver to drive after 
having been Sec. on duty more than 80 hours in 8 consecutive days. 
(Driving in Alaska.) (critical)
Sec. 395.3(a)(1)  Requiring or permitting driver to drive more than 
10 hours. (critical)
Sec. 395.3(a)(2)  Requiring or permitting driver to drive after 
having been on duty 15 hours. (critical)
Sec. 395.3(b)  Requiring or permitting driver to drive after having 
been on duty more than 60 hours in 7 consecutive days. (critical)
Sec. 395.3(b)  Requiring or permitting driver to drive after having 
been on duty more than 70 hours in 8 consecutive days. (critical)
Sec. 395.8(a)  Failing to require driver to make a record of duty 
status. (critical)
Sec. 395.8(e)  False reports of records of duty status. (critical)
Sec. 395.8(i)  Failing to require driver to forward within 13 days 
of completion, the original of the record of duty status. (critical)
Sec. 395.8(k)(1)  Failing to preserve driver's record of duty status 
for 6 months. (critical)
Sec. 395.8(k)(1)  Failing to preserve driver's records of duty 
status supporting documents for 6 months. (critical)
Sec. 396.3(b)  Failing to keep minimum records of inspection and 
vehicle maintenance. (critical)
Sec. 396.9(c)(2)  Requiring or permitting the operation of a motor 
vehicle declared ``out-of-service'' before repairs were made. 
(acute)
Sec. 396.11(a)  Failing to require driver to prepare driver vehicle 
inspection report. (critical)
Sec. 396.11(c)  Failing to correct Out-of-Service defects listed by 
driver in a driver vehicle inspection report. (acute)
Sec. 396.17(a)  Using a commercial motor vehicle not periodically 
inspected. (critical)
Sec. 396.17(g)  Failing to promptly repair parts and accessories not 
meeting minimum periodic inspection standards. (acute)
Sec. 397.5(a)  Failing to ensure a motor vehicle containing Class A 
or B explosives, (Class 1.1, 1.2, or 1.3) is attended at all times 
by its driver or a qualified representative. (acute)
Sec. 397.7(a)(1)  Parking a motor vehicle containing Class A or B 
explosives (1.1, 1.2, 1.3) within 5 feet of traveled portion of 
highway. (critical)
Sec. 397.7(b)  Parking a motor vehicle containing hazardous 
material(s) within 5 feet of traveled portion of highway or street. 
(critical)
Sec. 397.13(a)  Permitting a person to smoke or carry a lighted 
cigarette, cigar or pipe within 25 feet of a motor vehicle 
containing explosives, oxidizing materials, or flammable materials. 
(critical)
Sec. 397.19(a)  Failing to furnish driver of motor vehicle 
transporting Class A or B explosives (Class 1.1, 1.2, 1.3) with a 
copy of the rules of Part 397 and/or emergency response 
instructions. (critical)
Sec. 397.67(d)  Requiring or permitting the operation of a motor 
vehicle containing Division 1.1, 1.2, or 1.3 (explosive) material 
that is not accompanied by a written route plan. (critical)
Sec. 171.15  Carrier failing to give immediate telephone notice of 
an incident involving hazardous materials. (critical)
Sec. 171.16  Carrier failing to make a written report of an incident 
involving hazardous materials. (critical)
Sec. 177.800(c)  Failing to instruct a category of employees in 
hazardous materials regulations. (critical)
Sec. 177.817(a)  Transporting a shipment of hazardous materials not 
accompanied by a properly prepared shipping paper. (critical)
Sec. 177.817(e)  Failing to maintain proper accessibility of 
shipping papers. (critical)
Sec. 177.823(a)  Moving a transport vehicle containing hazardous 
material that is not properly marked or placarded. (critical)
Sec. 177.841(e)  Transporting a package bearing a poison label in 
the same transport vehicle with material marked or known to be 
foodstuff, feed, or any edible material intended for consumption by 
humans or animals. (acute)
Sec. 180.407(a)  Transporting a shipment of hazardous material in 
cargo tank that has not been inspected or retested in accordance 
with Sec. 180.407. (critical)
Sec. 180.407(c)  Failing to periodically test and inspect a cargo 
tank. (critical)
Sec. 180.415  Failing to mark a cargo tank which passed an 
inspection or test required by Sec. 180.407. (critical)
Sec. 180.417(a)(1)  Failing to retain cargo tank manufacturer's data 
report certificate and related papers, as required. (critical)
Sec. 180.417(a)(2)  Failing to retain copies of cargo tank 
manufacturer's certificate and related papers (or alternative 
report) as required. (critical)

[FR Doc. 97-29380 Filed 11-5-97; 8:45 am]
BILLING CODE 4910-22-P