Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60035

7USTA Petition at 9, 11.

8WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C.

Cir. 1969).

9 47 U.S.C. 276(b)(A).

We also include LECs that have nonequal-access switches in the general

coverage of this waiver. We do not

address in this order the special

problems presented by non-equal-access

switches that were raised in the USTA

Petition.7 We will be addressing in a

separate order the issues raised by

parties regarding the provision of

payphone-specific coding digits by nonequal-access switches. This waiver is effective immediately

in order to ensure that all PSPs receive

per-call compensation effective October

7, 1997, as required by the Payphones

Orders.

This waiver is appropriate because

special circumstances warrant a

deviation from the general rule, and

such a deviation will serve the public

interest.8 The special circumstances are

that transmission of payphone-specific

coding digits is not yet ready for

implementation for certain payphones.

The industry is, however, working on an

expeditious resolution of this situation.

The public interest is served by this

waiver because it allows the

Commission to move forward in

implementing the statutory

requirement 9 that PSPs receive fair

compensation for calls placed from their

payphones. Refusal to waive this

requirement would lead to the

inequitable result that many payphone

providers, particularly independent

providers who do not control the

network modifications necessary to

permit payphone-specific coding digits

to be transmitted, would be denied any

compensation while implementation

issues are being resolved by the

industry. This limited waiver, moreover,

will not significantly harm any parties.

The unavailability of these coding

digits, for instance, will not preclude

IXCs from identifying payphone calls

for the purpose of determining the

number of calls for which compensation

is owned. Nor will the waiver interefere

with the possibly sixty percent of

payphones that currently are able to

transmit payphone-specific coding

digits. Accordingly, pursuant to authority

contained in sections 1, 4, 201–205, 218,

226, and 276 of the Communications

Act of 1934, as amended, 47 U.S.C. 151,

154, 201–205, 218, 226, and 276, and

§§ 0.91, 0.291 and 1.3 of the

Commission’s rules, 47 CFR 0.91, 0.291

and 1.3, it is ordered on the

Commission’s own motion that the time

before payphone-specific coding digits

are required for per-call compensation is

extended until March 9, 1998, to the

extent described herein.

It is further ordered that this order is

effective upon release thereof, and that

the waiver included in this order is

effective October 7, 1997.

List of Subjects in 47 CFR Part 64

Communications common carriers,

Operator service access, Payphone

compensation, Telephone.

Federal Communications Commission.

A. Richard Metzger, Jr.,

Acting Chief, Common Carrier Bureau.

[FR Doc. 97–29305 Filed 11–5–97; 8:45 am]

BILLING CODE 6712–01–P

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.

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.’’
60036 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

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
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 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 § 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 nonpreventability 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 secondlevel 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’’
60038 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

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 counterproductive in determining if the carrier

was complying with regulatory

requirements and meeting the Safety

fitness standard in § 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

§ 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

§ 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
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 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 § 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 § 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 § 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
60040 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

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
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 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 § 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 § 385.3

are revised to include references to

§ 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 § 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 § 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 § 362.107 in the

April 29 NPRM has been incorporated

into this final rule, with minor changes,

as § 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 § 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

§ 385.17, and the related amendments to

§§ 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 § 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
60042 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

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 § 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:

§ 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 § 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 § 385.5 (a) through

(k).

* * * * *

3. Section 385.9 is revised to read as

follows:

§ 385.9 Determination of a safety rating.

(a) Following a compliance review of

a motor carrier operation, the FHWA,

using the factors prescribed in § 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

§ 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:

§ 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

§ 385.15, Administrative Review and

§ 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 § 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 § 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:

§ 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—
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 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:

§ 385.15 Administrative review.

(a) Within the 45 day notice period

provided in § 385.11(d), or within 45

days after denial of a request for a

change in rating as provided in

§ 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 § 385.17 of this

part.

7. Section 385.17 is revised to read as

follows:

§ 385.17 Change to safety rating based on

corrective actions.

(a) Within the 45-day period specified

in § 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 § 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 § 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 § 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 § § 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 § 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 § 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:

§ 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
60044 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

standard, and § 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 § 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 § 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 § 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

§ 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.’’
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 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

Unsat- Overall safety rating

isfactory

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 § 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 § 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 § 385.15, Administrative

Review and § 385.17, Change to safety rating

based on corrective actions.

V. Motor Carrier Rights to a Change in the

Safety Rating

Under §§ 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 (§ 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

§ 382.115(c) Failing to implement an

alcohol and/or controlled substance testing

program. (acute)

§ 382.201 Using a driver who has an alcohol

concentration of 0.04 or greater. (acute)

§ 382.211 Using a driver who has refused to

submit to an alcohol controlled substances

test required under Part 382. (acute)

§ 382.213(b) Using a driver who has used a

controlled substance. (acute)

§ 382.215 Using a driver who has tested

positive for a controlled substance. (acute)

§ 382.301(a) Using a driver before the motor

carrier has received negative preemployment controlled substance test

results. (critical)

§ 382.303(a) Failing to conduct post

accident testing on driver for alcohol and/

or controlled substances. (critical)

§ 382.305 Failing to implement a random

controlled substances and/or an alcohol

testing program. (acute)

§ 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)

§ 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)

§ 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)

§ 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)

§ 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 § 382.605. (critical)

§ 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)

§ 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)

§ 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)

§ 383.23(a) Operating a commercial motor

vehicle without a valid commercial

driver’s license. (critical)

§ 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)

§ 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)

§ 383.51(a) Allowing, requiring, permitting,

or authorizing a driver to drive who is

disqualified to drive a commercial motor

vehicle. (acute)

§ 387.7(a) Operating a motor vehicle

without having in effect the required

minimum levels of financial responsibility

coverage. (acute)

§ 387.7(d) Failing to maintain at principal

place of business required proof of

financial responsibility. (critical)

§ 387.31(a) Operating a passenger carrying

vehicle without having in effect the

required minimum levels of financial

responsibility. (acute)

§ 387.31(d) Failing to maintain at principal

place of business required proof of

financial responsibility for passenger

vehicles. (critical)

§ 390.15(b)(2) Failing to maintain copies of

all accident reports required by State or
60046 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

other governmental entities or insurers.

(critical)

§ 390.35 Making, or causing to make

fraudulent or intentionally false statements

or records and/or reproducing fraudulent

records. (acute)

§ 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)

§ 391.11(b)(6) Using a physically

unqualified driver. (acute)

§ 391.15(a) Using a disqualified driver.

(acute)

§ 391.45(a) Using a driver not medically

examined and certified. (critical)

§ 391.45(b) Using a driver not medically

examined and certified each 24 months.

(critical)

§ 391.51(a) Failing to maintain driver

qualification file on each driver employed.

(critical)

§ 391.51(b)(1) Failing to maintain medical

examiner’s certificate in driver’s

qualification file. (critical)

§ 391.51(c)(1) Failing to maintain medical

examiner’s certificate in driver’s

qualification file. (critical)

§ 391.51(c)(3) Failing to maintain inquiries

into driver’s driving record in driver’s

qualification file. (critical)

§ 391.51(d)(1) Failing to maintain medical

examiner’s certificate in driver’s

qualification file. (critical)

§ 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)

§ 391.93(a) Failing to implement a

controlled substances testing program.

(acute)

§ 391.99(a) Failing to require a driver to be

tested for the use of controlled substances,

upon reasonable cause. (acute)

§ 391.103(a) Failing to require a driverapplicant whom the motor carrier intends

to hire or use to be tested for the use of

controlled substances as a pre-qualification

condition. (critical)

§ 391.109(a) Failing to conduct controlled

substance testing at a 50% annualized rate.

(critical)

§ 391.115(c) Failing to ensure post-accident

controlled substances testing is conducted

and conforms with 49 CFR Part 40.

(critical)

§ 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)

§ 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)

§ 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)

§ 392.5(b)(2) Requiring or permitting a

driver who has consumed an intoxicating

beverage within 4 hours to operate a motor

vehicle. (acute)

§ 392.6 Scheduling a run which would

necessitate the vehicle being operated at

speeds in excess of those prescribed.

(critical)

§ 392.9(a)(1) Requiring or permitting a

driver to drive without the vehicle’s cargo

being properly distributed and adequately

secured. (critical)

§ 395.1(i)(1)(i) Requiring or permitting a

driver to drive more than 15 hours.

(Driving in Alaska.) (critical)

§ 395.1(i)(1)(ii) Requiring or permitting a

driver to drive after having been on duty

20 hours. (Driving in Alaska.) (critical)

§ 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)

§ 395.1(i)(1)(iv) Requiring or permitting

driver to drive after having been § on duty

more than 80 hours in 8 consecutive days.

(Driving in Alaska.) (critical)

§ 395.3(a)(1) Requiring or permitting driver

to drive more than 10 hours. (critical)

§ 395.3(a)(2) Requiring or permitting driver

to drive after having been on duty 15

hours. (critical)

§ 395.3(b) Requiring or permitting driver to

drive after having been on duty more than

60 hours in 7 consecutive days. (critical)

§ 395.3(b) Requiring or permitting driver to

drive after having been on duty more than

70 hours in 8 consecutive days. (critical)

§ 395.8(a) Failing to require driver to make

a record of duty status. (critical)

§ 395.8(e) False reports of records of duty

status. (critical)

§ 395.8(i) Failing to require driver to

forward within 13 days of completion, the

original of the record of duty status.

(critical)

§ 395.8(k)(1) Failing to preserve driver’s

record of duty status for 6 months. (critical)

§ 395.8(k)(1) Failing to preserve driver’s

records of duty status supporting

documents for 6 months. (critical)

§ 396.3(b) Failing to keep minimum records

of inspection and vehicle maintenance.

(critical)

§ 396.9(c)(2) Requiring or permitting the

operation of a motor vehicle declared ‘‘outof-service’’ before repairs were made.

(acute)

§ 396.11(a) Failing to require driver to

prepare driver vehicle inspection report.

(critical)

§ 396.11(c) Failing to correct Out-of-Service

defects listed by driver in a driver vehicle

inspection report. (acute)

§ 396.17(a) Using a commercial motor

vehicle not periodically inspected.

(critical)

§ 396.17(g) Failing to promptly repair parts

and accessories not meeting minimum

periodic inspection standards. (acute)

§ 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)

§ 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)

§ 397.7(b) Parking a motor vehicle

containing hazardous material(s) within 5

feet of traveled portion of highway or

street. (critical)

§ 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)

§ 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)

§ 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)

§ 171.15 Carrier failing to give immediate

telephone notice of an incident involving

hazardous materials. (critical)

§ 171.16 Carrier failing to make a written

report of an incident involving hazardous

materials. (critical)

§ 177.800(c) Failing to instruct a category of

employees in hazardous materials

regulations. (critical)

§ 177.817(a) Transporting a shipment of

hazardous materials not accompanied by a

properly prepared shipping paper. (critical)

§ 177.817(e) Failing to maintain proper

accessibility of shipping papers. (critical)

§ 177.823(a) Moving a transport vehicle

containing hazardous material that is not

properly marked or placarded. (critical)

§ 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)

§ 180.407(a) Transporting a shipment of

hazardous material in cargo tank that has

not been inspected or retested in

accordance with § 180.407. (critical)

§ 180.407(c) Failing to periodically test and

inspect a cargo tank. (critical)

§ 180.415 Failing to mark a cargo tank

which passed an inspection or test

required by § 180.407. (critical)

§ 180.417(a)(1) Failing to retain cargo tank

manufacturer’s data report certificate and

related papers, as required. (critical)

§ 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