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Proposed Rule

Carrier Safety Fitness Determination

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Start Preamble Start Printed Page 3562

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of proposed rulemaking (NPRM); request for comments.

SUMMARY:

FMCSA proposes to amend the Federal Motor Carrier Safety Regulations (FMCSRs) to revise the current methodology for issuance of a safety fitness determination (SFD) for motor carriers. The proposed new methodologies would determine when a motor carrier is not fit to operate commercial motor vehicles (CMVs) in or affecting interstate commerce based on the carrier's on-road safety data in relation to five of the Agency's seven Behavior Analysis and Safety Improvement Categories (BASICs); an investigation; or a combination of on-road safety data and investigation information. The intended effect of this action is to more effectively use FMCSA data and resources to identify unfit motor carriers and to remove them from the Nation's roadways.

DATES:

FMCSA will be accepting both initial comments and reply comments in response to this NPRM. Send your initial comments on or before March 21, 2016 and reply comments on or before April 20, 2016.

ADDRESSES:

You may submit comments (initial and reply) identified by the docket number FMCSA-2015-0001 using any of the following methods:

  • Web site: http://www.regulations.gov. Follow the instructions for submitting comments on the Federal electronic docket site.
  • Fax: 1-202-493-2251.
  • Mail: Docket Services, U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
  • Hand Delivery: Ground Floor, Room W12-140, DOT Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.

To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Mr. David Yessen, (609) 275-2606, David.Yessen@dot.gov. FMCSA office hours are from 7:30 a.m. to 4 p.m., Monday through Friday, except Federal holidays. If you have questions on viewing or submitting material to the docket, call Docket Services, telephone 202-366-9826.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

This notice of proposed rulemaking is organized as follows:

Table of Contents

I. Acronyms and Abbreviations

II. Executive Summary

III. Legal Basis

IV. History of Past Actions

A. History of SFDs

B. Analytical Basis for the Proposed Changes

V. Existing Safety Monitoring and Data Quality Programs

A. Safety Measurement System (SMS)

B. Interventions

C. Current SFD Process

D. Data Quality Program

VI. Proposed SFD Changes

A. Numbers of Inspections and Violations Used in This Proposal

B. Only One SFD—Unfit

C. Three Paths to “Proposed Unfit”

D. MAP-21 Requirements for Motor Carriers of Passengers and Operators of Motorcoach Services

E. Summary Justification for SFD Proposal

VII. Revised SFD Appeals Process

A. Administrative Review of Material Errors

B. Claiming Unconsidered Inspection Data

C. Requests To Operate Under a Compliance Agreement

D. Requests To Resume Operations After a Final Unfit Determination

E. Carriers Expected To Receive a Final Unfit SFD

VIII. Implementation of and Transition to Final Rule

A. Proposed MCSAP Requirements

B. Implementation of a Final Rule and Transition Provisions

C. General Statements of Enforcement Policy Regarding Violation Severity Weights and Time Weights

IX. Section-by-Section Description of Proposed Rule

A. Part 350

B. Part 365

C. Part 385

D. Part 386

E. Part 387

F. Part 395

X. Regulatory Analyses and Notices

XI. Public Participation and Request for Comments

A. Submitting Comments

B. Viewing Comments and Documents

C. Privacy Act

I. Acronyms and Abbreviations

ATRIAmerican Transportation Research Institute.
BASICBehavior Analysis and Safety Improvement Categories.
CDLCommercial Driver's License.
CMVCommercial Motor Vehicle.
CVORCommercial Vehicle Operators Registration.
CRCompliance Review.
CSACompliance, Safety, Accountability.
DOTUnited States Department of Transportation.
FHWAFederal Highway Administration.
FMCSAFederal Motor Carrier Safety Administration.
FMCSRsFederal Motor Carrier Safety Regulations, 49 CFR parts 350 through 399.
FRFederal Register.
HMHazardous Materials.
HMRHazardous Materials Regulations, 49 CFR parts 171 through 180.
MCMISMotor Carrier Management Information System.
MCSACMotor Carrier Safety Advisory Committee.
MCSAPMotor Carrier Safety Assistance Program.
NPRMNotice of Proposed Rulemaking.
NTSBNational Transportation Safety Board.
OMBOffice of Management and Budget.
PHMSAPipeline and Hazardous Materials Safety Administration.
PUPower Unit.
SFDSafety Fitness Determination.
SMSSafety Measurement System.
VMTVehicle Miles Traveled.
VOLPEU.S. DOT Office of the Assistant Secretary for Research and Technology's John A. Volpe National Transportation Systems Center, Cambridge, MA.
Start Printed Page 3563

II. Executive Summary

As the Federal government agency responsible for commercial motor vehicle (CMV) safety, FMCSA must identify unfit motor carriers. Under the existing regulations, a compliance review must be conducted to issue a Safety Fitness Determination (SFD) and, if a motor carrier receives a final unsatisfactory safety rating, FMCSA declares that motor carrier to be unfit to operate on the Nation's highways. The current SFD process does not permit the Agency to use all of the on-road safety data in the Motor Carrier Management Information System (MCMIS) in making each SFD. Based on experience and empirical data from the Safety Measurement System (SMS) and interventions, the integration of on-road safety data into the SFD process would improve the assessment of motor carriers and the identification of unfit motor carriers. Such integration is a longstanding recommendation of the National Transportation Safety Board (NTSB). Under this proposal, unfit determinations could be based on a carrier's on-road safety data alone. In this NPRM, FMCSA proposes to eliminate the current three-tier rating system (i.e., satisfactory-conditional-unsatisfactory) for determining safety fitness in favor of a single determination of unfit. FMCSA's statutory requirement is to determine which owners or operators are unfit to operate on the Nation's roadways, and prescribe specific consequences for motor carriers found to be unfit. By statute, such carriers are prohibited from operating in interstate commerce or transportation that affects interstate commerce.

Using data from inspections or investigations or both, FMCSA proposes to evaluate carriers monthly to determine if they failed two or more Behavior Analysis and Safety Improvement Categories (BASICs) and thus should be proposed unfit. A motor carrier would be proposed unfit if it: (1) Failed two or more BASICs based exclusively on on-road safety data from 11 or more inspections with 1 or more violations in each, in a single BASIC, before a carrier could fail the BASICs; (2) had violations of the proposed set of critical and acute regulations, identified through an investigation, that cause the motor carrier to fail two or more BASICs; or (3) failed two or more BASICs based on a combination of data from inspections and investigation results. The Agency's analysis and reasoning for these proposals is explained in more detail later in this document.

FMCSA's MCMIS automatically takes each motor carrier's safety data from on-road safety inspections and converts the data into a BASIC measure and a rank/percentile using the methodology in “Carrier Safety Measurement System (CSMS) Methodology.” [1] This methodology, available to the public since December 2010, provides the details of the SMS currently used for identifying unsafe behaviors and prioritizing and selecting motor carriers for interventions, including investigations and compliance reviews. Each motor carrier's measure in each BASIC is a quantifiable determination of safety behavior in that BASIC. Percentile ranking allows the safety behavior of a motor carrier to be compared with the safety behavior of carriers with similar numbers of safety events. Within each safety event group, a percentile is computed on a 0-100 scale for each motor carrier that receives a non-zero measure, with 100 indicating the worst performance. Currently, when a motor carrier's SMS measures percentile ranking meets or exceeds the intervention thresholds shown in Table 3 below, the Agency prioritizes the carrier for interventions, including possibly a compliance review.

In SMS, a carrier's performance is compared to other carriers in its safety event group every month. As a result, improved safety performance by other carriers could result in the carrier having higher (worse) percentiles without having committed any additional violations. In contrast, under the proposed SFD methodology, every month a carrier's performance would be compared to an absolute failure standard that would be set in regulation based on each safety event group. Because the absolute failure standard would not change from month to month, changes in another company's performance would not impact the motor carrier. The failure standard will only be changed after rulemaking by the Agency, with notice and comment. The carrier's SFD measure would reflect its own performance against the failure standard, and would not be impacted by other carriers' performance.

From the motor carrier's measures, percentile ranking, and intervention thresholds, FMCSA developed proposed SFD failure standards at higher levels of noncompliance with the FMCSRs and HMRs, which provide stronger correlations to previous crashes.[2] The proposed SFD failure standards would be equivalent to the measures that would determine a motor carrier unfit at the 96th percentile for the Unsafe Driving and HOS Compliance BASICs, that is, a person would know the carrier is in the worst 4 percent of carriers that have measurable (non-zero) data in the MCMIS. The proposed SFD standards would determine that a motor carrier is unfit at the 99th percentile for the Driver Fitness, Vehicle Maintenance, and HM Compliance BASICs. Likewise, a person would know the carrier is in the worst 1 percent of carriers that have measurable data in the MCMIS. A carrier's absolute BASIC performance measure in any given month, not the carrier's percentile within a given month, would be used to determine if the carrier failed the BASIC. A carrier with an absolute performance measure that equals or is greater than the failure standard proposed in this document for the carrier's safety-event group would fail that BASIC using only on-road safety data.

Thus, the failure standards for a proposed unfit SFD would require significantly more evidence of non-compliance than the thresholds in SMS that the Agency uses to prioritize a carrier for interventions. The Agency's proposed approach would ensure that only the worst performing motor carriers would be issued a proposed unfit determination based solely on on-road safety performance data.

In addition, the proposed standards for an unfit SFD would be set at absolute values that would be higher measures (i.e., poorer safety performance) than those used currently in SMS for interventions (see Table 3 below). The proposed SFD process would also require more inspections with violations—i.e., 11 versus 3 to 5—to trigger a proposed SFD.

Failure standards would be established in each BASIC for several safety event groups. A carrier meeting or exceeding the failure standard in its safety event group would fail the BASIC.

The Crash Indicator BASIC and the Controlled Substances/Alcohol Compliance BASIC would be evaluated only during investigations, because the Crash Indicator BASIC currently does not include preventability determinations and controlled Start Printed Page 3564substances and alcohol violations from on-road safety data would rarely meet the data sufficiency standards. Thus, these two BASICs would not be used to make a proposed unfit determination based on on-road performance data alone, although data relating to the Crash Indicator BASIC and Controlled Substances/Alcohol BASIC would certainly be used during investigations. To be proposed unfit based solely on on-road safety data, a motor carrier would have to meet or exceed the absolute failure standard established for its safety event group for two BASICs.

Further, only preventable crashes would be used in calculating an SFD. This differs from the current SFD process which only determines the preventability of crashes to contest a motor carrier's recordable crash rate after the SFD. As described below, crash data could trigger a failure in a BASIC during the investigative process only if a certified safety investigator makes a “preventability determination” on the crashes and the preventable crashes exceed the failure standard.

It is important to note that while the relative percentiles in SMS are not used in making Safety Fitness Determinations under this NPRM, the same data are used. Some groups have expressed concerns about that data, and many of those concerns are proactively addressed concerns about the SMS in the development of this SFD proposal. In addition to the differences noted above, it is important to point out that other concerns about the system including disparities for long-haul and short-haul carriers; differences for urban and rural motor carriers, and enforcement differences by the States have all been considered. The long and short haul differences are minimized by the combination (long-haul) and straight truck (short haul) segmentation. The impacts of urban and rural transportation are factored into the calculation of the Crash Indicator BASIC failure rates. Lastly, while enforcement differences exist between the States, the nature of the high failure standard in this rule is that the patterns of non-compliance for the carriers that are proposed unfit are not the result of these disparities but are the result of recurring non-compliance.

After a proposed unfit SFD, a motor carrier would have three different administrative proceedings available: (1) A review for material errors in assigning a proposed unfit SFD; (2) a review claiming unconsidered on-road performance inspection data; (3) a review after a request to operate under a compliance agreement. Consistent with current procedures, requests for one or more administrative reviews would not automatically stay a proposed unfit determination. After a final unfit determination, the motor carrier could request a review to resume operations.

The revised SFD methodology and rule would be used to identify and take legal action against unfit motor carriers that have failed to implement and maintain adequate safety management controls for achieving compliance with the FMCSRs and HMRs.

The Agency would maintain the current administrative review processes provided under § 385.15, would propose a compliance agreement procedure similar to the existing § 385.17 upgrade process for carriers with a proposed unfit SFD, and would add an opportunity to submit missing inspection data under § 385.16. FMCSA proposes to reduce the time for filing a petition for administrative review from the current 90 days to 15 days after the issuance of the proposed unfit SFD. Further, a new process, under § 385.18, explains the requirements for demonstrated corrective action and compliance agreements for entities with revoked registration due to an unfit safety rating.

Under this proposal, the Agency estimates in its separate Regulatory Evaluation that it would have proposed as unfit 3,056 motor carriers in 2011, about 2.5 times the number of proposed unfit SFDs relative to 1,232 under the current process, known as proposed unsatisfactory safety ratings. FMCSA estimates that the 3,056 proposed unfit SFD motor carriers would consist of:

  • 262 motor carriers based solely upon on use of inspection data,
  • 2,674 motor carriers based upon the result of investigations, and
  • 120 motor carriers based on a combination of inspection and investigation data.

FMCSA then evaluated how many of these 3,056 motor carriers would have been in active service 12 months following a hypothetical final unfit determination in 2011 and found that most, 2,822 carriers, were active. The actual crash involvement and crash rates experienced by this population of 2,822 carriers over the course of the 12 months after the hypothetical final unfit determination provides a baseline and means of estimating benefits had these carriers been identified by the proposed process. The separate Regulatory Evaluation analyzing the costs and benefits of the proposed rule is available in the docket.

Application of the proposed method to data from a supporting analysis [3] identified 1,805 additional poor-performing carriers beyond those identified by the current SFD process, while the current SFD process identified 106 carriers that the proposed SFD method would not (1,017 carriers were identified by both the current and proposed methods). On net, of the 1,699 of these 1,805 carriers—the subset of carriers which remained in active operation during the twelve months following the date upon which each would have received a final unfit determination under the proposed rule—the switch from the current to the proposed method identifies carriers that were involved in 41 more fatal crashes, 508 more injury crashes, and 872 more tow-away crashes in those subsequent 12 months. The crash reduction elicited from these carriers constitutes the benefits of the rule.

The costs of the rulemaking are those incurred by:

(1) Drivers who were employed by additional carriers ordered out of service (OOS) who are now forced to seek new employment. It is estimated that 1,855 drivers would have been adversely affected in this manner annually.

(2) The additional carriers identified as deficient under the proposed SFD that opt to improve performance, thereby incurring costs to achieve compliance.

(3) FMCSA, resulting from information technology system update and modification expenses (estimated as a one-time cost of $3.0 million incurred in year 2017 under both Option 1 and Option 2).

Given (1) an assumed 2.17 percent annual increase in the carrier population, and hence the number of drivers, and (2) no change in real wages for drivers over time,[4] for the ten years from 2017 through 2026 the annualized costs (discounted at seven percent) of this proposed rule are estimated at $9.9 million. Were the real wages of drivers to increase by one percent annually, then the annualized cost from 2017 through 2026 rises to $10.6 million. Were drivers' real wages to increase by two percent annually, the annualized Start Printed Page 3565cost of this proposed rule is $11.3 million.

Given (1) the estimated current monetized value of a statistical life component for a fatal crash of $10,885,000, for an injury crash of $393,000, and for a tow-away crash of $50,000, (2) annual increases in each of these values due to projected real growth of the value a statistical life of 1.18 [5] percent, (3) additional fixed crash costs not projected to increase annually of $134,000 for each fatal crash, $60,000 for each injury crash, and $22,000 for each tow-away crash, (4) an assumed 2.17 percent annual increase in the carrier population and hence the number of crashes, (5) an estimated 52.8 percent improvement in the 16.1 percent of carriers placed out of service (OOS), and (6) an estimated 17.4 percent improvement in the 83.9 percent of carriers that opted to correct deficiencies and remain in service, for the ten years from 2017 through 2026, the annualized benefits of the rule (discounted at seven percent) would be $240.9 million.[6]

With $240.9 million in annualized benefits and $9.9 million in annualized costs with no projected real wage growth among drivers, the annualized net benefits of the proposed rule would be $231.1 million. Table 1 summarizes the Agency's annualized benefit, cost, and net benefit projections of this rule utilizing a 7 percent discount rate under a range of annual real wage growth assumptions of 0 to 2 percent.

Table 1—Annualized Net Benefits (7% Discount Rate) of the Rule From 2017 Through 2026

[in millions of 2013$]

Real wage growth
0%1%2%
Benefits$240.9$240.9$240.9
Costs9.910.611.3
Net Benefits231.1230.4229.6
Note: Compliance costs to carriers that improve performance to achieve compliance are not estimated.

Cumulative benefits, costs, and net benefits of the proposed rule are presented in Table 2 for not discounted, 3% discounted, and 7% discounted bases. For brevity, corresponding tables associated with the 1% and 2% annual real wage growth scenarios are not included here as the projections are nearly identical under these alternate assumptions, and the minimal differences resulting from utilization of positive real wage growth assumptions are demonstrated in the annualized values in the preceding table.

Table 2—Cumulative Benefits and Costs of the Rule From 2017 Through 2026

[in millions of 2013$]

Discount rate—>0%3%7%
Benefits$2,290.9$1,997.5$1,692.0
Costs92.281.069.2
Net Benefits21,98.71,916.51,622.8
Note: Compliance costs to carriers that improve performance to achieve compliance are not estimated.

III. Legal Basis

The proposed rule would replace the current safety fitness rating methodology with new methodologies. The new methodologies incorporate on-road safety data and the results of safety investigations.

This rulemaking is based primarily on the authority of section 215 of the Motor Carrier Safety Act of 1984 (1984 Act),[7] which directs the Secretary of Transportation (Secretary) to determine whether an owner or operator is fit to operate safely commercial motor vehicles and to maintain by regulation a procedure for determining the safety fitness of an owner or operator. [49 U.S.C. 31144(a), (b)] Congress intended that the safety fitness procedure required by this section would supersede all previous rules regarding DOT safety fitness assessments and ratings of motor carriers.[8] FMCSA's authority to determine the safety fitness of owners or operators of CMVs was broadened with major amendments in 1998 by the Transportation Equity Act Start Printed Page 3566for the 21st Century (TEA-21) [9] and in 2005 by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).[10] Another amendment was made by the Commercial Motor Vehicle Safety Enhancement Act of 2012, part of the Moving Ahead for Progress in the 21st Century Act (MAP-21).[11]

As amended, the statute now requires the Secretary to: (1) Determine whether an owner or operator is fit to operate safely commercial motor vehicles, utilizing among other things the accident record of an owner or operator operating in interstate commerce and the accident record and safety inspection record of such owner or operator—(A) in operations that affect interstate commerce within the United States; and (B) in operations in Canada and Mexico if the owner or operator also conducts operations within the United States; (2) periodically update such safety fitness determinations; (3) make such final safety fitness determinations readily available to the public; and (4) prescribe by regulation penalties for violations of 49 U.S.C. 31144 consistent with 49 U.S.C. 521.[12]

It also provides that the Secretary shall maintain by regulation a procedure for determining the safety fitness of an owner or operator. The procedure shall include, at a minimum, the following elements: (1) Specific initial and continuing requirements with which an owner or operator must comply to demonstrate safety fitness; (2) a methodology the Secretary will use to determine whether an owner or operator is fit; (3) specific time frames within which the Secretary will determine whether an owner or operator is fit.[13]

This proposed rule also relies on 49 U.S.C. 31133, which gives the Secretary broad administrative powers to assist in the implementation of the provisions of the 1984 Act.[14] These powers include, among others, authority to conduct inspections and investigations, compile statistics, require production of records and property, prescribe recordkeeping and reporting requirements, and perform other acts considered appropriate. The Agency also has broad authority to inspect the equipment of a motor carrier or lessor, and to inspect and copy any record of a motor carrier or person controlling, controlled by, or under common control with, a motor carrier.[15] These powers are exercised to obtain the data used in the proposed new methodology for SFDs.[16]

FMCSA has authority to revoke the operating authority registration of any motor carrier that has been prohibited from operating as the result of a final unfit SFD.[17] MAP-21 grants FMCSA the authority to take similar action to revoke or suspend a motor carrier's safety registration on the same grounds.[18] FMCSA also has statutory authority to adopt a requirement that States receiving MCSAP grants enforce orders issued by FMCSA related to CMV safety and hazardous materials (HM) transportation safety.[19]

The Secretary has delegated the authority to carry out all of these functions to the FMCSA Administrator.[20]

IV. History of Past Actions

A. History of SFDs

The Federal Highway Administration (FHWA), the predecessor of FMCSA, promulgated Safety Fitness Procedures [21] in 1988 to determine the safety fitness of motor carriers through an onsite visit at the motor carrier's premises and to establish procedures to resolve safety fitness disputes with motor carriers, as required by the 1984 Act.[22] In 1991, FHWA issued an interim final rule [23] based on provisions of the Motor Carrier Safety Act of 1990 (1990 Act).[24] This interim final rule prohibited certain motor carriers rated unsatisfactory from operating CMVs in interstate commerce to transport more than 15 passengers or placardable quantities of HM starting on the 46th day after being found unfit. The regulation has been in effect since August 1991. FHWA stated that it would use a safety-rating formula to determine safety ratings, but the formula, while publicly available, was not included in the safety fitness regulation.[25]

In March 1997, in MST Express v. Department of Transportation,[26] the U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of a motor carrier that had appealed its conditional safety fitness rating. The court found that FHWA did not carry out its statutory obligation to establish, by regulation, a means of determining whether a carrier has complied with the safety fitness requirements of the 1984 Act.[27] Because the carrier's conditional safety rating was based, in part, upon the formula that was publicly available, but was not included in the promulgated 1988 final rule or 1991 interim final rule, the court vacated the petitioner's conditional safety rating and remanded the matter to FHWA for further action.

In response, FHWA issued a second interim final rule in May 1997 incorporating the safety fitness rating Start Printed Page 3567methodology into the safety fitness regulations [28] and a companion NPRM published the same day [29] proposed to adopt the formula or methodology for use in assigning safety fitness ratings to all classes of motor carriers. This companion NPRM discussed the public comments received in response to the 1991 interim final rule.

In November 1997, FHWA published a final rule incorporating the Agency's revised safety fitness rating methodology in appendix B to 49 CFR part 385, Safety Fitness Procedures.[30] In November 1998, FHWA published amendments to the rule that corrected several minor errors.[31] These changes withstood judicial review in 1999 in American Trucking Associations, Inc. v. U.S. DOT.[32] The court in the ATA case gave deference to the FHWA's interpretation of its statutory directive as it related to the level of specificity required in regulation and related interpretive guidance. On the reason for the Agency's use of interpretive guidance rather than notice and comment rulemaking to implement aspects of the methodology, the court noted: “It is easy to imagine an affirmative reason for the agency's decision not to subject the sampling procedure to notice and comment rulemaking—the desire to be able to vary these technical elements of the process without excessive delay as experience accrues.” [33]

In 1998, TEA-21 added a prohibition applicable to all owners and operators of CMVs not previously subject to the 1990 Act's prohibition—that is, those CMV owners and operators not transporting more than 15 passengers or HM in quantities requiring placarding. Following that change, all owners and operators, including those not transporting more than 15 passengers or HM in quantities requiring placarding, were prohibited from operating CMVs in interstate commerce, starting on the 61st day after being found unfit.[34] It also prohibited Federal agencies from using those owners and operators that were prohibited from operating to provide interstate transportation of non-HM freight. FHWA proposed the regulations implementing the TEA-21 amendments in 1999, and FMCSA, which was established in 2000, published the final rule on August 22, 2000.[35]

FMCSA published several additional amendments in 2000.[36] These changes updated the list of acute and critical regulations [37] to conform it to changes in FMCSA and the Pipeline and Hazardous Materials Safety Administration (PHMSA) regulations. In 2007, the Agency further revised the safety fitness procedures regulations and appendix B to implement SAFETEA-LU statutory amendments.[38]

In 2007, in response to a motorcoach crash with numerous fatalities, NTSB recommended that FMCSA use all motor carrier violations when assessing a carrier's safety fitness. (See NTSB recommendation H-07-003 in “Highway Accident Report: Motorcoach Fire on Interstate 45 During Hurricane Rita Evacuation Near Wilmer, Texas, September 23, 2005.” [39] ). A copy of the NTSB report and a related Motor Carrier Safety Advisory Committee (MCSAC) report have been placed in the docket. The MCSAC recommended unanimously to FMCSA that it implement the NTSB proposal to use all motor carrier violations when assessing a carrier's safety fitness. NTSB closed the recommendation on September 15, 2015, after NTSB accepted FMCSA's alternative actions. A copy of NTSB's letter closing the recommendation is also in the docket.

B. Analytical Basis for the Proposed Changes

FMCSA proposes to base SFDs on data from driver/vehicle inspections and investigations. Three reports regarding the Agency's existing SMS form the technical basis for the proposed methodology for this rulemaking. Two of the reports were prepared by FMCSA. The third report was developed and published by the American Transportation Research Institute (ATRI). Copies of all three reports are in the docket for this document.

The most recent report is titled “Carrier Safety Measurement System (CSMS) Methodology-Version 3.0.2” (June 2014).[40] It provides the details of the measurement system currently used for identifying unsafe carriers and prioritizing and selecting them for interventions under the Compliance, Safety, Accountability (CSA) initiative.

The second report, “Carrier Safety Measurement System (CSMS) Violation Severity Weights” (December 2010),[41] involved quantifying the relative crash risk of violations of the FMCSRs and HMRs. The results from this study were used to assign risk-based weights to driver/vehicle inspection violations in the SMS which would also be used in the proposed methodology for determining safety fitness. (See proposed appendix B to part 385.)

The third report, a study titled, “Compliance, Safety, Accountability: Evaluating a New Safety Measurement System and Its Impacts” (December 2012), ATRI, involved an analysis of carriers assessed by BASICs. The results from this study confirmed that SMS is better at targeting carriers and identifying safety problems. In addition, the ATRI study indicated that the number of “alerts” a carrier has is the best indicator of future crashes.

Additionally, the Agency's CSA Operational Model Test [42] and additional analysis by the University of Michigan Transportation Research Institute [43] and FMCSA indicate that Start Printed Page 3568SMS is more effective than SafeStat, the Agency's previous intervention prioritization system, because it improves identification of high-risk carriers and provides information for determining the specifics of their safety performance problems.

V. Existing Safety Monitoring and Data Quality Programs

The CSA program, implemented in December 2010, is FMCSA's current initiative to improve large truck and bus safety. It is a set of enforcement and compliance tools that allow FMCSA and its State partners to address the safety and compliance problems of motor carriers before crashes occur. There are two elements of the Agency's existing CSA Program that are part of the Agency's safety monitoring programs: (1) The Safety Measurement System (SMS); and (2) the use of a varied set of interventions on motor carriers identified by SMS. FMCSA has provided significant information about the CSA program and its initiatives through public listening sessions, Federal Register notices, a comments docket, and a dedicated Web site. As a result, this rulemaking provides only summary level information about CSA to explain its relationship to the proposed changes in the SFD process.[44]

The remaining element of the Agency's existing safety monitoring programs is the compliance review or investigation that results in a safety rating.

A. Safety Measurement System (SMS)

The SMS is an automated system that runs monthly and measures on-road safety performance of motor carriers to: (1) Identify candidates for intervention, (2) identify specific safety problems, and (3) monitor whether a carrier's performance is improving or getting worse. SMS groups the safety performance data of motor carriers and drivers into seven BASICs. The BASICs are:

1. Unsafe Driving BASIC

The Unsafe Driving BASIC addresses the requirement to avoid driving a CMV in a dangerous or careless manner, and it includes driving and parking rules for drivers transporting HM. Some safety violations that may cause a motor carrier to rank poorly in this BASIC include speeding, reckless driving, improper lane change, distracted driving, failure to wear safety belt while operating a CMV, and texting or using a mobile telephone while operating a CMV.

2. Hours of Service (HOS) Compliance BASIC

The HOS Compliance BASIC addresses the requirements to obey the HOS rules and not to drive when fatigued. This BASIC includes violations of the regulations pertaining to maximum driving time during the work day, maximum on-duty time that may be accumulated before driving is prohibited during the work day and during the work week, and preparation in proper form and manner and retention of records of duty status (RODS) as they relate to HOS requirements. Safety violations that may cause a motor carrier to rank poorly in this BASIC include a driver operating more hours than allowed under HOS regulations, failure to prepare and maintain RODS and falsification of RODS.

3. Driver Fitness BASIC

The Driver Fitness BASIC addresses the requirements concerning commercial driver's licenses (CDLs) and disqualifying offenses for persons operating CMVs, as defined in 49 CFR 383.5. This BASIC also captures violations of the regulations for driver qualifications, including medical qualifications for interstate drivers of CMVs, as defined in 49 CFR 390.5. High scores in this BASIC are an indication that a carrier has allowed the operation of CMVs by drivers who are not qualified due to a lack of knowledge, skills, medical qualifications, or a valid license.

4. Controlled Substances/Alcohol BASIC

The Controlled Substances/Alcohol BASIC addresses the requirements for controlled substances and alcohol testing for CDL holders. Safety violations that may cause a motor carrier to rank poorly in this BASIC include a driver found to be in possession of alcoholic beverages or operating under the influence of a controlled substance.

5. Vehicle Maintenance BASIC

The Vehicle Maintenance BASIC addresses the requirements for equipment inspection, proper maintenance, and repair of a CMV, and the prevention of shifting loads and spilled or dropped cargo. Proper maintenance includes ensuring that lamps or reflectors are working, brakes are in proper working condition, and tires are not dangerously worn. Some safety violations that may cause a motor carrier to rank poorly in this BASIC are operating a vehicle with inoperative brakes, lights, or other mechanical defects; failure to make required repairs; improper load securement to prevent shifting upon or within the CMV to such an extent that the CMV's stability or maneuverability is adversely affected; or operating a vehicle placed OOS for safety deficiencies.

6. HM Compliance BASIC

The HM Compliance BASIC addresses the Federal safety regulations related to the packaging, transportation, and identification of HM. In the event of a crash or spill, the HM Compliance BASIC also covers the proper communication of the hazard of the cargo on board. The general public is subject to a greater safety risk if HM is involved in a motor carrier crash; and unmarked or poorly marked HM cargo can result in less effective emergency response, as well as injuries and fatalities for emergency responders and others. At present, the HM Compliance BASIC scores can be seen only by enforcement personnel and by a motor carrier that accesses its own safety profile; it is not publicly available. The public can, however, see information on the number and types of HM violations involving the motor carrier.

7. Crash Indicator BASIC

The Crash Indicator BASIC identifies histories or patterns of crash involvement, such as frequency and severity. It is based on information from State-reported crashes that meet recordable crash standards. Multiple State-reported crashes raise the percentile rank of the Crash Indicator BASIC, which signals potential safety problems. The SMS cannot currently factor in the role of the carrier in causing the crash—or crash preventability. (See discussion of crashes below.) At present, the Crash Indicator BASIC can be seen only by enforcement personnel and by a motor carrier that accesses its own safety profile; it is not publicly available. The public can, however, see information on the number and severity of crashes involving the motor carrier.

B. Interventions

Interventions are a suite of enforcement tools ranging from warning letters to comprehensive investigations that provide carriers with the information necessary to understand Start Printed Page 3569their safety problems and to change unsafe behavior.

Currently, when a motor carrier's SMS scores meet or exceed established intervention thresholds the Agency prioritizes it for investigations or enforcement. The SMS intervention thresholds are as follows:

Table 3—Intervention Thresholds for SMS

BasicSMS Intervention thresholds
PassengerHMAll others
Unsafe Driving, HOS, Crash IndicatorGreater than or equal to (≥) 50%≥60%≥65%
Driver Fitness, Controlled Substances/Alcohol, Vehicle Maintenance≥65%≥75%≥80%
HM≥80≥80%≥80%

It is important to note that the thresholds FMCSA currently uses to select carriers for an intervention, using SMS, are not the same measures that are being proposed in this NPRM for the SFD failure standards. (See Section 2.4 of proposed appendix B to part 385 below.)

C. Current SFD Process

SFDs are currently determined based on data collected during a CR or other investigation. The existing SFD process uses six factors to rate carriers' safety performance. Portions of the regulations (the FMCSRs and the HMRs) with similar characteristics are grouped together into six 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 HM—Parts 171, 177, 180, and 397

Factor 6 Accident [45] factor—Recordable accident rate per million miles

FMCSA calculates a vehicle out-of-service rate, reviews crash involvement, and conducts an in-depth examination of the motor carrier's compliance with the acute and critical regulations of the FMCSRs and HMRs, currently listed in 49 CFR part 385, appendix B, part VI.

  • “Acute regulations” are those where noncompliance is so severe as to require immediate corrective action, regardless of the overall safety management controls of the motor carrier.
  • “Critical regulations” are related to management or operational systems controls.

Overall noncompliance is calculated and rated on a point system according to the six factors. During the investigation, for each instance of noncompliance with an acute regulation or each pattern of noncompliance with a critical regulation one point is assessed. Patterns of noncompliance with HOS are assessed two points. For a critical regulation, the number of violations required to meet the threshold for a pattern is equal to at least 10 percent of those sampled, and more than one violation must be found to establish a pattern. In addition, on-road safety data is used in calculating the vehicle and crash factors.

If any of the six factors is assessed one point, then that factor is rated as “conditional.” If any of the six factors is assessed two points, then that factor is rated as “unsatisfactory.” Two or more individual factors rated as “unsatisfactory” will result in an overall rating of “unsatisfactory.” One individual factor rated as “unsatisfactory” and more than two individual factors rated as “conditional” will also result in an “unsatisfactory” rating overall. See Table 4 below:

Table 4—Current SFD Rating Table

Factor ratingsOverall safety rating
UnsatisfactoryConditional
02 or fewerSatisfactory
0More than 2Conditional
12 or fewerConditional
1More than 2Unsatisfactory
2 or more0 or moreUnsatisfactory

The Agency's current SFD process is resource-intensive and reaches only a small percentage of motor carriers. In FY 2012, FMCSA and its State partners conducted approximately 17,000 ratable reviews out of a population of more than approximately 525,000 active motor carriers. A ratable review is one that could potentially result in a conditional or unsatisfactory safety rating. Table 5 presents the distribution of ratable reviews conducted.

Table 5—Distribution of Ratable Investigations Types in FY 2012 46

Investigation typeNumber
Ratable Full CRs/Comprehensive On-Site Investigations6,641
Ratable Focused CRs/Focused On-Site Investigations10,361
Total17,002

Of the 17,002 ratable reviews conducted in FY 2012, 1,013 resulted in a proposed unsatisfactory safety rating, while an additional 3,618 resulted in a proposed or final safety rating of conditional.

The Agency concludes that changes to the SFD process are needed for many reasons. First, the current SFD methodology evaluates a motor carrier's compliance using only a limited range of inspection data. Additionally, the current process does not integrate all of the data that is available in MCMIS. Over 3.5 million inspections are conducted each year, and this information is not effectively used to remove unsafe operators from our Nation's roadways.

Second, the safety rating is a snapshot of a company's safety performance on a specific date. The Agency's MCMIS database reflects safety ratings dating back to 1986, and many of the ratings are not likely to reflect the carriers' current safety compliance.

Third, the current SFD process is not designed to continually monitor motor carrier on-road safety data. In addition, the assignment of a “satisfactory” safety rating implies to the public, correctly or not, that the Agency has approved the current operations of a motor carrier, when actually FMCSA has merely rated the operations for the specific period covered by the CR. The assigned safety rating thus may not reflect the company's current compliance and could be misleading to those who might interpret it as a reflection of a motor carrier's current safety status.Start Printed Page 3570

Fourth, under the current SFD process, a motor carrier may continue to operate indefinitely with a conditional rating even if a ratable review reveals breakdowns in safety management controls in multiple areas. For example, a motor carrier with noncompliance documented by an investigation in areas such as vehicle maintenance (factor 4) and controlled substances and alcohol testing (factor 2) would receive only a proposed conditional rating, which, if it became final, still allows the motor carrier to continue operating.

Fifth, as noted above, the current regulations only allow the Agency and its State partners to assess or rate the safety fitness of a small population of motor carriers on an annual basis. This proposal expands the number of assessed and rated carriers.

Lastly, FMCSA has two open NTSB recommendations related to changing the safety fitness methodology on which the Agency has agreed to take action: [47]

  • H-99-006: Change the safety fitness rating methodology so that adverse vehicle and driver performance-based data alone are sufficient to result in an overall unsatisfactory rating for the carrier.
  • H-12-017: Include safety measurement system rating scores in the methodology used to determine a carrier's fitness to operate in the safety fitness rating rulemaking for the new Compliance, Safety, Accountability initiative.

For these reasons, the Agency proposes to make the changes to the SFD process reflected in this NPRM.

D. Data Quality Program

Over the past several years, the Agency has significantly improved the quality of safety data on motor carriers and considers the State-reported driver and vehicle inspection and crash data to be reliable. All of the States receive MCSAP grant funds from FMCSA and are required to establish programs to “ensure that . . . accurate, complete, and timely motor carrier safety data is collected and reported” and to participate in a national motor carrier safety data correction system.[48] FMCSA sets a goal for States to provide standard, basic information about large truck and bus crashes within 90 days of the crash event and results of driver/vehicle inspections within 21 days. In addition, FMCSA implemented a comprehensive set of data quality initiatives to assist the States in improving the accuracy, timeliness, completeness, and consistency of crash and inspection data. The process provides the States and FMCSA with a monthly report that summarizes the latest performance results and tracks progress toward meeting FMCSA's goals. Also, evaluation teams made up of technical experts from the DOT's John A. Volpe National Transportation Systems Center and FMCSA conduct reviews of the data collection processes for State-reported crash and inspection data. These reviews identify areas for potential process improvement. These initiatives have resulted in a significant improvement in the quality of State-reported data over the past several years.

In addition, FMCSA developed the DataQs online system to facilitate data corrections and to track corrective actions.[49] DataQs provides a single, Web-based location that allows the industry to file and monitor Requests for Data Review (RDRs) concerning Federal and State data released to the public. Through the DataQs system, data concerns are forwarded automatically to the appropriate office for resolution, including State partners. The system also allows filers to monitor the status of each request. Requests for changes to data based on adjudicated citations are also processed through the DataQs system.

FMCSA also evaluates State-reported crash and inspection data and releases evaluation data to the public on a quarterly basis on the FMCSA Web site. The evaluation uses the State Safety Data Quality map to rate the States on the completeness, timeliness, accuracy, and consistency of State-reported crash and inspection data reported to MCMIS (http://ai.fmcsa.dot.gov/​DataQuality/​dataquality.asp[50] ). As of October 2015, only the District of Columbia and Massachusetts had a “poor” rating and two States (Connecticut and Maryland) have “fair” ratings. All other States have “good” ratings.

VI. Proposed SFD Changes

A. Numbers of Inspections and Violations Used in This Proposal

FMCSA uses 11 inspections as the minimum number for several different analyses and considerations in Tables 6 through 16. Table 6 below is provided to clarify the various applications of the 11-inspection requirement. To receive a safety fitness determination based on inspections a motor carrier must have had at least 11 inspections in the previous 24 months.

Table 6—Number of Inspections With Violations Required

ActionMinimum number of inspections requiredMinimum number of inspections with violations requiredExplanation
Assess110If a motor carrier has 11 inspections in MCMIS, the Agency has sufficient information to assess it.
Data Sufficiency for Potential to Fail a BASIC1111This is the data threshold that must be met before a carrier could fail a BASIC.
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B. Only One SFD—Unfit

In this NPRM, FMCSA proposes to eliminate the current three-tier rating system (i.e., satisfactory-conditional-unsatisfactory). FMCSA proposes to change its SFD system to a single determination—unfit. The Agency has statutory discretion to establish the nomenclature for safety fitness determinations.[51] In addition, the safety fitness statute requires FMCSA to determine only “whether an owner or operator is fit” to continue to operate on the Nation's roadways, and it prescribes specific consequences for motor carriers found to be not fit. It prohibits such carriers from engaging in interstate transportation [52] or transportation that affects interstate commerce.[53] It also prohibits any U.S. Government agency from using such carriers for transportation.[54]

This change to the SFD process would address some of the shortcomings of the current safety rating system. Most importantly, it would help focus the Agency's resources on removing unsafe carriers from the Nation's highways. In addition, it would eliminate the misperception that a satisfactory rating means that FMCSA approves of the current operations of a motor carrier. FMCSA believes that the term “unfit” conveys a clearer and more accurate message to the public than the term “unsatisfactory.” These changes better align the safety fitness regulations with the Agency's mission to remove unsafe operators from the Nation's roadways. At the same time, the change makes clear that the Agency will not devote its limited enforcement resources toward reviews initiated for the sole purpose of assigning a more positive safety rating label to carriers that are not prohibited from operating in interstate or intrastate commerce.

C. Three Paths to “Proposed Unfit”

Based on the Agency's experience with SMS and interventions, FMCSA believes that integration of on-road safety data into the SFD process would improve the safety evaluation of motor carriers and the identification of unsafe motor carriers as unfit. Under this proposal, unfit determinations could be based on one of three methodologies.

  • Unfit Method 1: Carrier with Two or More Failed BASICs from On-Road Safety Performance
  • Unfit Method 2: Carrier with Violations of the Revised Critical and Acute Regulations Identified Through an Investigation
  • Unfit Method 3: Combination of Inspection Data and Investigation Results

Figures 1, 2, and 3 illustrate how, under this proposal, carriers could receive proposed unfit safety fitness determinations. This information is also provided in appendix B. Extensive detail for each method is provided below. These paths to a proposed unfit determination are not mutually exclusive. For example, even though an owner or operator regularly undergoes the monthly assessment under Unfit Method 1, at any time, if circumstances warrant, FMCSA can conduct an investigation under Unfit Method 2 to determine whether the owner or operator is fit.

Start Printed Page 3572

Start Printed Page 3573

1. Unfit Method 1: Carrier With Two or More Failed BASICs From On-Road Safety Performance Is Proposed Unfit

Under Unfit Method 1, violations recorded on inspections would be sorted into the five BASICs for which on-road safety data is considered under the proposed SFD process: Unsafe Driving, HOS Compliance, Driver Fitness, Vehicle Maintenance, and HM Compliance. (Under the proposed SFD process, a motor carrier can fail the Crash Indicator BASIC or the Controlled Substances and Alcohol BASIC only based upon investigation findings under Unfit Method 2.)

The proposed rule would require 11 or more inspections with 1 or more violations in each, in a single BASIC, before a carrier could fail the BASIC for SFD purposes. The Agency proposes 11 or more inspections with violations, rather than the minimum of 3 to 5 inspections with violations required for SMS intervention, because this higher number provides a higher confidence level in assessing safety fitness, which is appropriate due to the seriousness of the regulatory consequences.

While more inspections with violations might be an even stronger indicator of non-compliance, as was recommended by the Government Accountability Office (GAO) for the Agency's SMS,[55] a significantly greater data requirement—e.g., 20 inspections with violations—would mean that an unreasonably large percentage of carriers would never reach this threshold in a 24-month period. FMCSA believes that a more than twofold difference from the higher SMS inspection requirement is sufficient and appropriate for SFD. The Agency's analysis indicates that requiring 11 or more inspections with 1 or more violations in each increases the proportion of medium to large carriers falling within the “SFD eligible” population, compared to a 5 or more inspection requirement, but still does not result in small motor carriers escaping scrutiny. The Agency notes that carriers with 10 or fewer inspections with violations are still subject to safety fitness determinations under Unfit Method 2. The Agency also notes that raising the inspection requirement above 20 violations as GAO recommends for SMS as shown in tables 8 to 13, the groups of 11 to 20 inspections showed the highest crash risk compared to carriers with more inspections.

Table 7 illustrates the number of carriers that have 11 or more inspections with 1 or more violations in each in a 24-month period and, therefore, would have sufficient data to be evaluated for an SFD, compared to carriers with 5 or more inspections.

Table 7—Number of Carriers That Have 11 or More or 5 or More Inspections in a 24-Month Period

Power units11+ inspections (SFD)5+ inspections (intervention)
Number of carriersPercent of total shown (percent)Number of carriersPercent of total shown (percent)
5 or fewer31,95742.186,48659.5
6 to 1521,88528.932,97422.7
16 to 5014,84319.618,12212.5
51 to 5006,5588.67,0584.9
Start Printed Page 3574
501+5850.85970.4
Total75,828100145,237100

The weight of a safety event would decrease over time, with more recent events having a greater impact on a motor carrier's BASIC scores than events from the more distant past. Under this proposal the Agency would not use events older than 24 months in determining a motor carrier's safety performance measure.

FMCSA emphasizes that a carrier that receives a proposed unfit determination under Method 1 may have the opportunity to enter into a compliance agreement which could provide it an opportunity to improve its safety performance and avoid a final determination of unfit. Therefore, the increased scrutiny that comes with poor results from 11 inspections with violations within 24 months does not mean the carrier would automatically face an operations out-of-service order. It would be required, however, to correct deficiencies in its safety management controls sooner than it would if the Agency waited for a larger number of inspections. The Agency requests comments on the minimum number of inspections and minimum number of violations that should be considered in making a proposed unfit determination.

Proposed Failure Standards for Unfit Method 1

The proposed failure standard for an SFD would be set at an absolute value that would equate to higher levels (i.e., poorer safety performance) than those used in SMS for interventions. That absolute value—a figure based on time- and severity-weighted violations divided by the number of relevant inspections or vehicles for different safety event groups—would be set at the time when the SFD rule becomes final.

The Agency's goal is to establish failure standards that would identify motor carriers with a high crash risk. However, the Agency must take into consideration existing enforcement resources and strike a balance between the population identified and the ability to handle the associated workload.

In considering what absolute failure standards to propose, the Agency considered four options, based on different SMS percentiles. The standards considered equate roughly to the 95th, 96th, 98th, and 99th percentiles for all motor carriers with 11 or more inspections with violations for the 24-month period that ended on March 22, 2013. The proposed failure standards for each BASIC, as calculated through inspections, are presented in Tables 8 through 13. But the standards in the final rule will be based on a more current data and calculation completed closer to the final rule's publication date.

For purpose of analysis in this rulemaking, the Agency proposes to use the absolute failure standards that equate to the 99th percentile for the Driver Fitness, Vehicle Maintenance, and HM Compliance BASICs. This failure standard is equivalent to the absolute value that defines the worst 1 percent of motor carriers with 11 or more inspections, each with 1 or more violations, in a BASIC as of the date of the calculation—March 22, 2013. (See also Table 16 below.)

The failure standard for Unsafe Driving and HOS Compliance would be more stringent than the other BASICs and require a higher level of compliance. A measure equivalent to the 96th percentile would be used for the Unsafe Driving and HOS Compliance BASICs. FMCSA based this standard on the stronger correlation of these BASICs to previous crashes.[56] During CSA development, the Agency discussed having these two BASICs be “stand-alone” BASICs in the SFD rulemaking; [57] meaning that failing even one of these two BASICs would result in a proposed unfit SFD. However, based on both the Agency's analysis for this proposal and the ATRI research, mentioned above, using more BASICs to determine a carrier's safety fitness has been shown to be a better measure of the overall safety performance of the carrier.

The Crash Indicator BASIC and the Controlled Substances/Alcohol Compliance BASIC would be examined only during investigations, because the Crash Indicator BASIC currently does not include preventability determinations, and controlled substances and alcohol violations from on-road safety data would rarely meet the data sufficiency standards.

Failure standards for each of the five BASICs relevant to Unfit Method Number 1 would be established for up to four different safety event groups. (A full explanation of safety event groups is provided below.) A carrier meeting or exceeding the failure standard in its safety event group in the specific BASIC would fail that BASIC for SFD purposes. Tables 8 through 16 below show the options FMCSA considered for each BASIC.

In SMS, a carrier's performance is compared every month to other carriers in its safety event group. As a result, improved performance by other carriers could result in the carrier having higher (worse) percentiles, without the carrier having committed any additional violations. By contrast, in the proposed SFD process, each month a carrier's performance would be compared to an absolute failure standard that would be set in regulation based on each safety event group. Because the absolute failure standard would not change by the month but instead would only change after rulemaking by the Agency, with notice and an opportunity to comment, changes in another company's performance would not impact the motor carrier. The carrier's measure would reflect its own performance against the failure standard.

Tables 8 through 13 below show proposed failure standards that would apply for each of the five BASICs used in this methodology. For all of the BASICs except Unsafe Driving, the threshold would be determined by Start Printed Page 3575dividing the number of time- and severity-weighted violations by the number of relevant inspections. The specific numerators and denominators that would be used to determine the proposed failure standard for each BASIC are identified in appendix B. For purposes of clarifying and analyzing this proposal only, failure standards are presented below based on the data available as of March 22, 2013. But the standards in the final rule will be based on a more current calculation completed closer to the final rule's publication date.

Table 8—Unsafe Driving Failure Standards (Generally, Weighted Violations Divided by Power Units—See Appendix B, Section 2.4)—Combination 58 Vehicle Segment—Alternatives Considered

Safety Event Group (number of inspections with unsafe driving violations)BASIC Failure standard equivalent to 95%BASIC Failure standard equivalent to 96%BASIC Failure standard equivalent to 98%BASIC Failure standard equivalent to 99%
11 to 2112.7414.2118.5427.25
22-578.779.5813.518.98
58-1495.476.268.109.71
150+2.772.802.903.00

Table 9—Unsafe Driving Failure Standards: (Weighted Violations Divided by Power Units) Straight Truck 59 Segment—Alternatives Considered

Safety event group (number of inspections with unsafe driving violations)BASIC Failure standard equivalent to 95%BASIC Failure standard equivalent to 96%BASIC Failure standard equivalent to 98%BASIC Failure standard equivalent to 99%
11 to 188.199.6411.4715.99
19-494.595.127.3112.05
50+1.361.471.892.05

Table 10—Hours of Service Compliance Failure Standards (Weighted Violations Divided by Driver Inspections)—Alternatives Considered

Safety event group (number of driver inspections)BASIC Failure standard equivalent to 95%BASIC Failure standard equivalent to 96%BASIC Failure standard equivalent to 98%BASIC Failure standard equivalent to 99%
11 to 203.884.154.945.65
21-1002.943.133.665.21
101-5002.092.202.442.69
501+1.461.541.731.91

Table 11—Driver Fitness Failure Standards (Weighted Violations Divided by Driver Inspections)—Alternatives Considered

Safety event group (number of driver inspections)BASIC Failure standard equivalent to 95%BASIC Failure standard equivalent to 96%BASIC Failure standard equivalent to 98%BASIC Failure standard equivalent to 99%
11 to 201.541.682.192.74
21-1000.780.861.111.39
101-5000.290.310.390.50
501+0.140.150.190.24

Table 12—Vehicle Maintenance Failure Standards (Weighted Violations Divided by Vehicle Inspections)—Alternatives Considered

Safety event group (number of vehicle inspections)BASIC Failure standard equivalent to 95%BASIC Failure standard equivalent to 96%BASIC Failure standard equivalent to 98%BASIC Failure standard equivalent to 99%
11 to 2014.1914.9316.9418.79
Start Printed Page 3576
21-10011.9612.6214.3816.12
101-5008.849.1810.3611.82
501+6.546.777.98.91

Table 13—HM Compliance Failure Standards (Weighted Violations Divided by Placarded HM Inspections)—Alternatives Considered

Safety event group (number of placarded HM inspections)BASIC Failure standard equivalent to 95%BASIC Failure standard equivalent to 96%BASIC Failure standard equivalent to 98%BASIC Failure standard equivalent to 99%
11 to 204.184.345.556.87
21-1002.812.993.654.82
101-5001.861.962.342.56
501+1.331.461.831.95

The percentage of carriers and crash rates of carriers under FMCSA's jurisdiction are presented in Tables 14 and 15 below for the purpose of comparison. Table 14 displays the frequency with which motor carriers are identified as “unfit,” based on the number of power units (PU) the carrier operates. Table 15 show the crash rates for the same motor carriers.

Table 14—Distribution of Proposed Unfit Determinations by Power Units (PU) Groups for Each Alternative Considered

Alternatives considered5 or fewer PU (%)6 to 15 PU (%)16 to 50 PU (%)51 to 500 PU (%)501+ PU (%)
General Population of Carriers with Recent Activity * as of March 2013 (Baseline for comparison)82.811.24.41.50.1
Option 1: Equivalent to 95th percentile for Unsafe Driving and HOS and 98th percentile for Driver Fitness, Vehicle Maintenance, and HM (Based on 11+ inspections with violations)63.122.210.83.50.3
Proposed Option: Equivalent to 96th percentile for Unsafe Driving and HOS and 99th percentile for Driver Fitness, Vehicle Maintenance, and HM (based on 11+ inspections with violations)63.922.310.23.30.3
* Recent Activity means a motor carrier has had any recorded activity in the past 36 months related to an inspection, crash, investigation (including new entrant audit), MCS-150 update, registration activity, insurance or Unified Carrier Registration payment, process agent update or name/ownership change. Also, any carrier with active for-hire operating authority is considered as having “recent activity.” Using this definition, FMCSA intends to remove from its motor carrier census motor carriers with “active status” that have left the industry years ago but still remain in the census because they never notified FMCSA that they stopped operating CMVs.

Both considered options noted above result in inclusion of a smaller proportion of small (5 or fewer power units) carriers than small carriers represent nationally. Therefore, neither of these options is numerically biased against small carriers, as demonstrated in Tables 15 and 16.

Table 15—Crash Rates of Carriers Determined To Be Unfit—by Alternatives Considered

[in crashes per 100 power units (PU)]

Alternatives considered5 or fewer PU6 to 15 PU16 to 50 PU51 to 500 PU501+ PU
General Population of Carriers with Recent Activity as of March 2013 (Baseline for comparison)2.22.32.42.21.8
Option 1: Equivalent to 95th percentile for Unsafe Driving and HOS and 98th percentile for Driver Fitness, Vehicle Maintenance, and HM (Based on 11+ inspections with violations)6.75.34.83.62.6
Start Printed Page 3577
Proposed Option: Equivalent to 96th percentile for Unsafe Driving and HOS and 99th percentile for Driver Fitness, Vehicle Maintenance, and HM (Based on 11+ inspections with violations)6.55.24.73.83.5

The highest crash rates identified (between 6.5 and 6.7) are all in the small (5 or fewer power units) carrier population. This suggests that small carriers are not unfairly selected under either of the two proposed models.

Table 16 presents the overall crash rates of carriers identified by two or more failed BASICs from inspections. The nation-wide crash rate of the general carrier population is 2.13 per 100 power units. The general carrier population crash rate was calculated on a consistent time frame as that of the carriers identified under the proposed process.

Table 16—Number of Total Failed Carriers and the Corresponding Crash Rate

Alternatives consideredNumber of carriers unfit based on 2 or more failed BASICs (inspection violations only)Crash rate (crashes per 100 power units)Active carriersCrashes for active carriersPower units for active carriers
Option 1: Equivalent to 95th percentile for Unsafe Driving and HOS/98th percentile for Driver Fitness, Vehicle Maintenance, and HM (Based on 11+ inspections with violations)4793.7538756915,161
Proposed Option: Equivalent to 96th percentile for Unsafe Driving and HOS/99th for Driver Fitness, Vehicle Maintenance, and HM (Based on 11+ inspections with violations)2628.282113003,625

Of the two options presented, the proposed option identifies the carriers (262) that have the highest overall crash rate (8.28 crashes per 100 power units).

Although Option 1 has a higher net benefit than Option 2, the Agency notes that selecting Option 1 may require additional resources while Option 2 is largely resource neutral. The Agency can accommodate under Option 2 the number of investigations resulting in proposed unfit determinations based on its current resources. The number of enforcement cases, compliance agreements, and oversight required from this population approaches the capacity of the Agency's existing staff. Option 2 represents the best balance for the Agency with its limited resources. It should be noted that the cost of reallocating Agency resources is not included in this analysis. FMCSA seeks comment on this policy choice.

FMCSA proactively addressed concerns about the SMS in the development of this SFD proposal. In addition to the differences noted above, it is important to point out that other concerns about the system including disparities for long-haul and short-haul carriers; differences for urban and rural motor carriers, and enforcement differences by the States have all been considered. The long and short haul differences are minimized by the combination (long-haul) and straight truck (short haul) segmentation. The impacts of urban and rural transportation are factored into the calculation of the Crash Indicator BASIC failure rates. Lastly, while enforcement differences exist between the States, since the failure standards proposed in this rule are significantly higher than the SMS intervention thresholds, the patterns of non-compliance for the carriers that are proposed unfit are not the result of these disparities but are the result of recurring non-compliance.

Safety Event Groups

As noted above, the Agency is proposing different SFD failure standards within each BASIC. The applicable failure standard for each motor carrier would be based on its assigned safety event group. If FMCSA did not establish different SFD failure standards for each safety event group, a disproportionately high number of small carriers (i.e., carriers with few safety events) would be found to be unfit. Larger carriers (with many safety events) would rarely fail. The Agency believes the reason for this disparity is attributable to the statistical phenomenon of higher fail rates among carriers with few safety events—“the law of small numbers.” [60]

Diagram 1 below shows an example of the absolute failure standard that corresponds to the worst performing 4 percent of carriers for the HOS Compliance BASIC. This data comes from Table 10 above.

Start Printed Page 3578

The above diagram shows that establishing a single failure standard, without reference to the number of safety events to which a motor carrier is exposed, would disproportionately affect those carriers with fewer safety events—typically smaller carriers. For example, if the HOS Compliance BASIC SFD failure standard were set at 4.15 for all carriers, 4 percent of carriers with 11-20 inspections would fail. However, very few carriers in the remaining safety event groups have measures as high as 4.15. A carrier with many inspections (21 or more relevant inspections with violations) would be essentially immune to BASIC failure from on-road safety performance. Therefore, the SFD failure standard needs to be proportionate to the number of safety events.

FMCSA uses the same percentile equivalent (e.g. 96 percentile for HOS Compliance BASIC) to make sure all carriers are held to similar safety standards regardless of the number of inspections and the variance associated with number of inspections. This allows the Agency to treat carriers of all sizes as equitably as possible. To adjust the failure standard based on the number of inspections would imply that carriers of a certain size are inherently more unsafe. This would open the Agency to criticism that the rule is biased against small carriers or large carriers (depending on how the percentiles are adjusted). Given that this proposal is designed to get the most non-compliant carriers off the road (regardless of size), the straightforward approach is applying the same percentile equivalent to all safety event groups.

A baseball analogy may provide some insight into this impact. A major league baseball player's number of at-bats is important to evaluating whether his batting average warrants demotion to the minor leagues. Likewise, a motor carrier's number of inspections is important in evaluating whether its performance warrants adverse SFD consequences. For example, 2 hits in 20 at-bats at the beginning of the baseball season (i.e., a 0.100 batting average) would generally not get a baseball player demoted to the minor leagues. However, 80 hits in 400 at-bats (i.e., a 0.200 batting average) across an entire season likely would get a baseball player demoted, even though his batting average is twice as high (0.200 vs. 0.100).[61]

Similarly, motor carriers with few inspections exhibit a wider range of performance measures than carriers with many more inspections. A batter might bat 5 for 10 (0.500 average) in the first week of the season (corresponding to a high absolute measure), but no batter sustains that level through 400 at bats. Similarly, a carrier could have an HOS Compliance BASIC violation in each of 5 inspections, but it would be almost impossible that a carrier would have 500 HOS Compliance BASIC violations in 500 inspections. The greater the number of events, be they at-bats or inspections, the narrower the range of realistic outcomes. Failure standards that incorporate the number of safety events thus ensure that the worst performing motor carriers across all sizes and numbers of safety events are subject to an absolute standard.

When appropriate, the motor carrier's BASICs measures are normalized to reflect differences in inspection and Start Printed Page 3579other safety oversight exposure among motor carriers. The HOS Compliance and Driver Fitness measures are normalized by adding the number of time-weighted driver inspections, while Vehicle Maintenance BASIC measures are normalized by adding the number of time-weighted vehicle inspections. The HM Compliance BASIC is normalized by adding the number of time-weighted vehicle inspections where placardable quantities of HM were present. The inspections used to normalize a BASIC measure are considered relevant inspections.

Motor carrier exposure for the Unsafe Driving BASIC is normalized by carrier size using power units and vehicle miles traveled (VMT). Carriers with above-average CMV utilization, in terms of VMT per power unit as reported from MCMIS, receive a positive adjustment to account for the increased exposure to violations that result from miles operated by incorporating an Unsafe Driving Utilization Factor. The Unsafe Driving BASIC accounts for further carrier differences by dividing the carrier population into two segments based on the current mix of vehicles operated. This differentiates the levels of exposure associated with carriers that have fundamentally different types of operations.

The Unsafe Driving Utilization Factor is a multiplier that adjusts the average power unit values based on utilization in terms of VMT per average power unit where VMT data from the past 24 months are available. In cases where the VMT data have been obtained multiple times over the past 24 months for the same carrier, FMCSA proposes to use the most current VMT figure reported by the motor carrier during an investigation, reported online biennially, or reported on Forms MCSA-1 or MCS-150. The Utilization Factor would be calculated as follows:

(1) Determine carrier segment based on the types of vehicles the carrier operates (The types of vehicles are “combination” [62] or “straight truck.” These different types of power units are defined on the Application for USDOT Registration/Operating Authority (Form MCSA-1) [63] instructions);

(2) Calculate the VMT per average power unit by taking the most recent positive VMT data [64] and dividing it by the average power units;

(3) Use the information in (1) and (2) to find the utilization factor in Tables 2-3 and 2-4 to appendix B to part 385: VMT per Power Unit.

Use of failure standards that consider the number of safety events has precedent. The province of Ontario, Canada uses a similar approach in its Commercial Vehicle Operators Registration (CVOR) motor carrier safety rating system. A technical document that illustrates Ontario's safety rating failure standards based on a motor carrier's number of inspections is included in the docket for this document.[65] The Ontario Ministry of Transportation “analysed the on-road safety performance of a large sample of carriers operating in Ontario during the two-year period from July 1, 2003 until June 30, 2005. Collision rates and safety related conviction rates for each carrier were plotted and compared for carriers with varying rates of travel, resulting in a standard that identifies acceptable levels of performance. A similar standard was developed for vehicle inspection performance based on frequency of inspection. Performance standards were determined based on monthly kilometric travel. . . . An overall performance level or threshold was established for each carrier by weighting the collision, conviction and inspection performances in the ratios of 2:2:1. In other words, collisions and convictions are given double the weight of inspections in determining an operator's overall violation rate (performance level)” page 25.

FMCSA proposes that the failure standard for each safety event group be the absolute performance measure corresponding to a given BASIC percentile at the time the standard is set. For example, the absolute failure standards that correspond to the 96th percentile in the HOS Compliance BASIC are presented above in Table 10. FMCSA specifically seeks comments on the use of absolute failure standards based on a motor carrier's number of inspections. In addition, the Agency requests information on the impact to commenters if the Agency were to move to a different safety event grouping approach—similar to Ontario's CVOR process. Under such a different approach, there would be more safety event groups in each BASIC and more corresponding BASIC failure standards. The carrier groupings would be narrower and more closely aligned to the motor carrier's exact number of inspections. For example, rather than grouping all motor carriers with 11-20 inspections for the Vehicle BASIC, as is proposed in this NPRM, a different approach might establish safety event groups and corresponding BASIC failure standards for all motor carriers with, for example, 11-13 inspections, 14-16 inspections, and 17-20 inspections.

FMCSA seeks comment on setting the standard at the same percentile for each safety event group. Would it be appropriate to allow the threshold to vary across safety event groups? If so, please provide data to support your position.

2. Unfit Method 2: Carrier With Violations of the Revised Critical and Acute Regulations Identified Through an Investigation

Unfit Method 2 would use data only from investigations. For example, investigations may begin after receipt of a complaint alleging a substantial violation of a regulation is occurring or has occurred, a crash report suggesting a substantial violation of a regulation occurred, or when a motor carrier's SMS BASIC percentiles meet or exceed intervention thresholds. The Agency proposes to use any of the investigation types used by the Agency during interventions—either an offsite focused, onsite focused, or an onsite comprehensive investigation to issue proposed SFDs. This approach would modify the Agency's current requirement for an onsite investigation in order to issue an SFD. Documentation supporting an unfit determination would be collected using existing enforcement guidelines and standards— including sampling methodologies.Start Printed Page 3580

If a motor carrier is cited for a violation of an acute regulation associated with a BASIC, it would fail that BASIC. If a motor carrier is cited for a violation of a critical regulation with violations discovered in a minimum of 10 percent violation of the records examined, it would fail that BASIC. If a motor carrier failed two or more BASICs due to violations of the proposed critical and/or acute regulations, this would result in a proposed unfit determination. This proposed SFD methodology raises the safety standard above that used in the current process. Only one violation of a critical regulation, at a 10 percent or higher violation rate, would be required to fail a BASIC, whereas, in the current process, two violations of critical regulations are generally required to fail a Factor.

The costs and benefits associated with this proposal only use investigation results from a one month period prior to a proposed SFD. FMCSA specifically seeks comments on the length of time that failed BASICs from investigations should be reviewed together with failed BASICS from on-road safety data to potentially result in a proposed SFD.

As a result of its analysis and alternatives development, FMCSA proposes to alter the list of critical and acute regulations. Analysis by FMCSA [66] compared the crash rates of motor carriers with violations of the existing list of critical and acute regulations to the crash rates of motor carriers with violations of the proposed list of critical and acute regulations. The revised, refined list of critical and acute regulations correlated to a higher crash rate. For the purpose of proposing unfit SFDs, the refined list of critical and acute regulations is an equally strong, if not a better, indicator of crash risk. A copy of the analysis is included in the docket for this rulemaking.

Table 17 shows the revised acute and critical violations and the BASIC with which they would align. The current critical and acute regulations may be found at 49 CFR part 385, appendix B, section VII. In contrast to on-road inspection violations, violations cited during an investigation are not time or severity weighted, see section 2.3.7, 2.3.8, and 2.3.9 in proposed appendix B to part 385 below.

Table 17—Revised Critical and Acute Regulations

Acute or critical49 CFR sectionDescription of violationBehavior analysis and safety improvement category (BASIC)
Critical173.24(b)(1)Accepting for transportation or transporting a package that has an identifiable release of a HM to the environmentHM Compliance.
Critical173.24b(d)(2)Loading bulk packaging (cargo tank) with an HM which exceeds the maximum weight of lading marked on the specification plateHM Compliance.
Critical173.33(a)(1)Offering or accepting a HM for transportation in an unauthorized cargo tankHM Compliance.
Critical173.33(a)(2)Loading or accepting for transportation two or more materials in a cargo tank motor vehicle which if mixed results in an unsafe conditionHM Compliance.
Critical173.33(b)(1)Loading HM in a cargo tank motor would have a dangerous reaction when in contact with the tankHM Compliance.
Critical177.800(c)Failing to instruct a category of employees in HM regulationsDriver Fitness.
Acute177.801Accepting for transportation or transporting a forbidden materialHM Compliance.
Critical177.817(a)Transporting a shipment of HM not accompanied by a properly prepared shipping paperHM Compliance.
Critical177.834(i)Loading or unloading a cargo tank without a qualified person in attendanceHM Compliance.
Critical177.848(d)Failing to store, load, or transport HM in accordance with the segregation tableHM Compliance.
Critical180.407(a)Transporting a shipment of HM in cargo tank that has not been inspected or retested in accordance with § 180.407HM Compliance.
Acute382.115(a)Failing to implement an alcohol and/or controlled substances testing program (domestic motor carrier)Controlled Substances.
Acute382.115(b)Failing to implement an alcohol and/or controlled substances testing program (foreign motor carrier)Controlled Substances.
Acute382.201Using a driver known to have an alcohol concentration of 0.04 or greaterControlled Substances.
Acute382.211Using a driver who has refused to submit to an alcohol or controlled substances test required under part 382Controlled Substances.
Acute382.215Using a driver known to have tested positive for a controlled substanceControlled Substances.
Critical382.301(a)Using a driver before the motor carrier has received a negative pre-employment controlled substance test resultControlled Substances.
Critical382.303(a)Failing to conduct post-accident testing on driver for alcoholControlled Substances.
Critical382.303(b)Failing to conduct post-accident testing on driver for controlled substancesControlled Substances.
Acute382.305Failing to implement a random controlled substances and/or an alcohol testing programControlled Substances.
Critical382.305(b)(1)Failing to conduct random alcohol testing at an annual rate of not less than the applicable annual rate of the average number of driver positionsControlled Substances.
Critical382.305(b)(2)Failing to conduct random controlled substances testing at an annual rate of not less than the applicable annual rate of the average number of driver positionsControlled Substances.
Start Printed Page 3581
Critical382.309Using a driver without a return to duty testControlled Substances.
Critical382.503Allowing a driver to perform safety sensitive function, after engaging in conduct prohibited by subpart B, without being evaluated by substance abuse professional, as required by § 382.605Controlled Substances.
Critical383.3(a)/383.23(a)Using a driver who does not possess a valid CDLDriver Fitness.
Acute383.37(a)Knowingly allowing, requiring, permitting, or authorizing an employee who does not have a current CLP or CDL, who does not have a CLP or CDL with the proper class or endorsements, or who operates a CMV in violation of any restriction on the CLP or CDL to operate a CMVDriver Fitness.
Acute383.51(a)Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a CMVDriver Fitness.
Acute391.11(b)(4)Using a physically unqualified driverDriver Fitness.
Acute391.15(a)Using a disqualified driverDriver Fitness.
Critical391.45(a)Using a driver not medically examined and certifiedDriver Fitness.
Critical391.45(b)(1)Using a driver not medically examined and certified during the preceding 24 monthsDriver Fitness.
Critical391.51(a)Failing to maintain driver qualification file on each driver employedDriver Fitness.
Critical392.2Operating a motor vehicle not in accordance with the safety laws, ordinances, and regulations of the jurisdiction in which it is being operatedUnsafe Driving.
Critical392.6Scheduling a run which would necessitate the vehicle being operated at speeds in excess of those prescribedUnsafe Driving.
Critical392.9(a)(1)Requiring or permitting a driver to drive without the vehicle's cargo being properly distributed and adequately securedVehicle Maintenance.
Critical395.1(h)(1)(i)Requiring or permitting a property-carrying CMV driver to drive more than 15 hours (Driving in Alaska)HOS Compliance.
Critical395.1(h)(1)(ii)Requiring or permitting a property-carrying CMV driver to drive after having been on duty 20 hours (Driving in Alaska)HOS Compliance.
Critical395.1(h)(1)(iii)Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 70 hours in 7 consecutive days (Driving in Alaska)HOS Compliance.
Critical395.1(h)(1)(iv)Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 80 hours in 8 consecutive days (Driving in Alaska)HOS Compliance.
Critical395.1(h)(2)(i)Requiring or permitting a passenger-carrying CMV driver to drive more than 15 hours (Driving in Alaska)HOS Compliance.
Critical395.1(h)(2)(ii)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty 20 hours (Driving in Alaska)HOS Compliance.
Critical395.1(h)(2)(iii)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 70 hours in 7 consecutive days (Driving in Alaska)HOS Compliance.
Critical395.1(h)(2)(iv)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 80 hours in 8 consecutive days (Driving in Alaska)HOS Compliance.
Critical395.1(o)Requiring or permitting a property-carrying CMV driver to drive after having been on duty 16 consecutive hoursHOS Compliance.
Critical395.3(a)(1)Requiring or permitting a property-carrying CMV driver to drive without taking an off-duty period of at least 10 consecutive hours prior to drivingHOS Compliance.
Critical395.3(a)(2)Requiring or permitting a property-carrying CMV driver to drive after the end of the 14th hour after coming on dutyHOS Compliance.
Critical395.3(b)(1)Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 60 hours in 7 consecutive daysHOS Compliance.
Critical395.3(b)(2)Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 70 hours in 8 consecutive daysHOS Compliance.
Critical395.5(a)(1)Requiring or permitting a passenger-carrying CMV driver to drive more than 10 hoursHOS Compliance.
Critical395.5(a)(2)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty 15 hoursHOS Compliance.
Critical395.5(b)(2)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 70 hours in 8 consecutive daysHOS Compliance.
Critical395.8(a)Failing to require driver to make a record of duty statusHOS Compliance.
Critical395.8(e)False reports of records of duty statusHOS Compliance.
Critical395.8(i)Failing to require driver to forward within 13 days of completion, the original of the record of duty statusHOS Compliance.
Critical395.8(k)(1)Failing to preserve driver's record of duty status for 6 monthsHOS Compliance.
Critical395.8(k)(1)Failing to preserve driver's records of duty status supporting documents for 6 monthsHOS Compliance.
Start Printed Page 3582
Critical396.3(b)Failing to keep minimum records of inspection and vehicle maintenanceVehicle Maintenance.
Acute396.9(c)(2)Requiring or permitting the operation of a motor vehicle declared “out-of-service” before repairs were madeVehicle Maintenance.
Acute396.11(c)Failing to correct Out-of-Service defects listed by driver in a driver vehicle inspection report before the vehicle is operated againVehicle Maintenance.

In some forums for SMS purposes, the Agency has referred to violations of certain critical and acute regulations as essential safety management violations and fundamental violations, respectively.[67] However, for the purposes of this rulemaking, the Agency is not proposing to change the current terminology. Instead, FMCSA would revise the list in section VII in appendix B to part 385 and retain the terms “critical” and “acute.” This terminology is included in the Motor Carrier Safety Improvement Act of 1999, and is familiar to law enforcement and the industry. Proposed revisions to 49 CFR part 385, appendix B, are explained in detail in Part IX of this proposed rule.

The critical and acute violations noted in Table 17 above have been used for the analysis in the Regulatory Evaluation accompanying this proposal. But the Agency is also considering whether to include the following violations and seeks comment specifically on these violations.

  • § 390.35—Making, or causing to make, fraudulent or intentionally false statements or records or reproducing fraudulent records.
  • § 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.
  • § 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.
  • § 392.5(b)(2)—Requiring or permitting a driver who shows evidence of having consumed an intoxicating beverage within 4 hours to operate a motor vehicle.
  • § 392.16—A commercial motor vehicle which has a seat belt assembly installed at the driver's seat shall not be driven unless the driver has properly restrained himself/herself with the seat belt assembly.
  • § 392.80(a)—No driver shall engage in texting while driving.
  • § 392.80(b)—No motor carrier shall allow or require its drivers to engage in texting while driving.
  • § 392.82(a)(1)—No driver shall use a hand-held mobile telephone while driving a commercial motor vehicle.
  • § 392.82(a)(2)—No motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMV.
  • § 396.7(a)—Requiring or permitting operation of a motor vehicle in a condition likely to cause an accident or breakdown of the vehicle.
  • § 396.17(a)—Using a commercial motor vehicle not periodically inspected.

As a result, the Agency seeks comment and data on these regulations and others that should be considered critical or acute. Lastly, the Agency seeks comment and data on how critical and acute regulations should be determined; is associated crash risk the best measurement, or is there a better or additional reason?

Crashes

The statute requires the Agency to consider crashes in determining safety fitness.[68] A motor carrier's crash experience would impact the SFD only if the carrier's recordable crashes had first been evaluated for preventability as part of an investigation. This is consistent with FMCSA's existing methodology. For this purpose, the Agency will consider only recordable crashes. A crash is recordable if it involves a CMV and meets the definition in 49 CFR 390.5 (defining “accident”).

The Agency proposes to determine preventability by applying the standards and procedures currently utilized in assessing preventability of recordable crashes when determining a safety rating. Those procedures make use of previously issued guidance for making preventability determinations, set out in FMCSA's A Motor Carrier's Guide to Improving Highway Safety.[69]

The Agency calculates a motor carrier's crash rate by multiplying the motor carrier's number of recordable interstate and intrastate crashes in the previous 12 months by 1,000,000. That result is divided by the motor carrier's fleet mileage during the previous 12 months. The failure standard for crash rates is 1.5 for general operations and 1.7 for urban operations. If the motor carrier exceeds the failure standard, the crashes will be reviewed for preventability. The crash rate will then be recalculated using only preventable crashes. If the motor carrier's preventable crash rate remains above the failure standard, the motor carrier would then fail the Crash Indicator BASIC.

In 1997, FMCSA's predecessor, the Federal Highway Administration, published a Final Rule (62 FR 60035) indicating that it would use a carrier's recordable crash rate as a factor in determining its safety rating, but would continue to consider the preventability of such crashes when challenged by individual carriers. The thresholds for unacceptable crash rates were set using recordable crash data from 1994-1996. FMCSA seeks comment on whether either the recordable crash rate or the preventable crash rate would be more appropriate for use in calculating a carrier's SFD and whether the recordable crash rates currently incorporated into 49 CFR part 385, appendix B, should be retained as thresholds under the new SFD.

3. Unfit Method 3: Combination of Inspection Data and Investigation Results

During an investigation, it may be determined that violations of acute or critical regulations result in only one failed BASIC. However, the motor carrier may also have one additional BASIC over the SFD failure standard based on the most recent 24 months of Start Printed Page 3583on-road safety data. When, at the time of the investigation, there is one failed BASIC as a result of on-road safety data and one or more additional failed BASICs as a result of violations discovered during the investigation, the motor carrier would be proposed unfit. Crash and controlled substances/alcohol information would be considered, as noted above, only during the investigation.

4. Specific Applications

English Language Proficiency

It should be noted that the Agency's analysis, including the estimated number of proposed unfit motor carriers, does not include violations of 49 CFR 391.11(b)(2) for English Language Proficiency (ELP). These violations are also not included in the proposed violation tables in appendix B of part 385. The Agency chose to do the analysis without this violation based on the Commercial Vehicle Safety Alliance's (CVSA) 2014 decision to remove this violation from it's out of service criteria. The Agency specifically seeks comments on this issue.

Passenger Carriers

Congress and FMCSA have both acknowledged the increased risk associated with transportation of passengers. Currently, FMCSA also holds passenger motor carriers to more stringent intervention thresholds in SMS.

The Agency is considering an alternative, more stringent, proposal for passenger carriers that would result in a proposed unfit SFD. The proposal would have two elements. First, a passenger carrier would receive a proposed unfit SFD when it meets or exceeds failure standards comparable to the 75th percentile for either the Unsafe Driving or HOS Compliance BASIC. Under this part of the alternative proposal, a passenger carrier could be proposed unfit for failing either Unsafe Driving or HOS Compliance, without failing a second BASIC. Secondly, and in addition, FMCSA is considering a structure where a proposed unfit SFD would also result if a passenger carrier meets or exceeds SFD failure standards comparable to the 90th percentile when the absolute thresholds in two of the three other BASICs—Vehicle Maintenance, Driver Fitness or HM Compliance.

The Agency estimates that 270 passenger carriers would be proposed as unfit using these alternate failure standards. This would result in 93 more passenger carriers being proposed unfit than would result from using two failed BASICs comparable to the 96th and 99th percentiles, as elsewhere proposed in this document. Using data from on-road safety data and investigation results, the estimated crash rate for these 270 passenger carriers is 2.08 applying the same approach used in the Regulatory Evaluation. The national average for all passenger carriers is 1.09 crashes per 100 power units. The proposed unfit passenger carriers using these alternate failure standards had experienced a crash rate (2.08 per 100 power units) that was almost twice the national passenger carrier rate (1.09 per 100 power units) or an increase of 90% ((2.08-1.09/1.09)).

As a result, the Agency seeks feedback and data on whether passenger carriers should be held to more stringent SFD failure standards, that is, at an absolute value equivalent to the 75th percentile (or some other percentile less than the 96th percentile) for the Unsafe Driving and HOS Compliance BASICs failure standards, and equivalent to the 90th percentile (or some other percentile less than the 99th percentile) for the Driver Fitness, Vehicle Maintenance, HM Compliance, and Crash Indicator BASICs. The Agency also requests comment on whether the proposed failure standards are appropriate.

The Agency is also interested in alternative methods for identifying high risk passenger carriers during an investigation. It is considering lowering the minimum rate of violations for a pattern, for purposes of a critical regulation violation, from 10 percent to 5 percent or a lower number. FMCSA seeks comments on this concept.

Hazardous Materials Carriers

The SMS also has lower intervention thresholds for HM carriers. As a result, the Agency seeks feedback and data on whether these carriers should be held to a more stringent standard (i.e., lower BASIC failure standards). The Agency is specifically interested in feedback on whether the failure standard should be different for HM safety permit carriers.

Under this proposal, HM safety permit applicants would continue to be required to have a comprehensive onsite investigation comparable to the existing CR, conducted at the motor carrier's principal place of business, and would be issued a HM safety permit as long as they were not unfit and met other applicable requirements. Either inspections or another investigation after issuance of the HM safety permit could result in an unfit determination, however, thus affecting the HM safety permit status.

Foreign Motor Carriers

Under this proposal, the Agency notes that Mexican, Canadian, and Non-North American carriers registered with FMCSA could be found to be unfit based on their inspection data and investigation results.

Mexican long-haul carriers permitted to operate in this country beyond border commercial zones are required to have a compliance review before being granted standard authority. In the future, if long-haul authority is granted, the carrier would be required to have a comprehensive investigation comparable to an existing CR within 18 months of FMCSA granting the carrier provisional operating authority registration before being granted standard authority. Additionally, on-road safety data or findings from another investigation could result in an unfit determination, thus affecting the carrier's provisional authority status.

D. MAP-21 Requirements for Motor Carriers of Passengers and Operators of Motorcoach Services

A MAP-21 amendment requires the Secretary to conduct initial and periodic safety reviews of for-hire motor carriers of passengers.[70] Initial reviews of those motor carriers of passengers that are providers of motorcoach services registered with the Secretary after October 1, 2012, are to begin no later than two years after the dates of their respective registrations. Reviews of such providers registered on or before October 1, 2012, are to begin no later than October 1, 2015.[71] An uncodified statutory provision of MAP-21 directs the Secretary to establish requirements to improve the public accessibility of the safety rating information of providers of motorcoach services, and advises that the Secretary should also consider requirements for public display of such information on motorcoaches, at departure terminals, and at ticket sales locations.[72]

MAP-21 requires the Secretary to determine the safety fitness of each motor carrier of passengers through a simple and understandable rating system that allows passengers to compare their safety performance. MAP-21 also requires the Secretary to assign a safety fitness rating to each Start Printed Page 3584such motor carrier, which is reassessed at least once every 3 years, although motor carriers of passengers that serve primarily urban areas with high passenger volume are to be reassessed annually.[73] In addition, section 32707(b) of MAP-21 requires that FMCSA improve public access to safety fitness information for motorcoach services and operations in interstate commerce.

As discussed previously, the Agency is proposing to determine only one category of safety fitness—unfit. This determination would also be made for some motor carriers of passengers through the monthly assessment of the inspection data. If the passenger carrier did not have 11 inspections in the previous 24 months by which to be adequately assessed, an investigation of the carrier's safety performance would be conducted.

Section 32707(b) also requires the Agency to consider requiring the prominent display of safety fitness rating information in each motorcoach terminal of departure, on the inside of the motorcoach vehicle, and at all points of sale for motorcoach services. The public has access to critical information about the safety record and ratings of motor carriers of passengers, including providers of motorcoach services, on the FMCSA Web site and through the Agency's SaferBus application.[74] FMCSA believes that implementing the statutory requirement to consider prominently displaying SFD information at terminals, ticket sale locations, and on motorcoaches could result in fraudulent information being displayed, and, therefore, is better addressed by directing the traveling public to FMCSA's Web site and the SaferBus application. FMCSA seeks comments on whether the public's access to a for-hire motorcoach operator's safety record on the FMCSA Web site and SaferBus application is sufficient to meet the public access and display requirements of section 32707(b)(2) of MAP-21.

E. Summary Justification for SFD Proposal

FMCSA has structured this SFD proposal to identify those motor carriers with the highest crash risk. Carriers identified through two failed BASICs based solely on on-road safety data (using the 96/99 percentile threshold standard) have a crash rate of 8.28 crashes per 100 power units. All carriers with two failed BASICs (including carriers failing a BASIC due to a finding during an investigation and on-road safety data) have a crash rate of 4.39 crashes per 100 power units. This is compared to the nation-wide average crash rate of 2.13 crashes per 100 power units for all carriers.

The proposed use of on-road safety data would allow the Agency to identify and take action against unsafe motor carriers. Table 18 below illustrates both the number of carriers proposed unfit and the associated crash rate for two different options for failure standards for SFDs. Option 2 is the option proposed in this rulemaking.

Table 18—Number of Carriers Proposed Unfit—Identified With Two Failed BASICs

Failure standard optionAll proposed unfit methods:Proposed unfit method 1: Number of carriers proposed unfit based on inspection data (and associated crash rate per 100 PUs)Proposed unfit method 2: Number of carriers proposed unfit based on investigations (and associated crash rate per 100 PUs)Proposed unfit method 3: Number of carriers proposed unfit based on inspection and investigation (and associated crash rate per 100 PUs)
Total number of carriers proposed unfitTotal number of crashes for carriers proposed unfitAssociated crash rate per 100 power units (PUs)
No. 1—Equivalent to 95 and 98 percentiles3,2912,1243.93479 (3.75)2,656 (3.94)156 (4.66)
No. 2—Equivalent to 96 and 99 percentiles3,0561,8624.39262 (8.28)2,674 (3.98)120 (4.61)

The Agency used lessons learned from SMS and feedback from stakeholders [75] in crafting the proposed SFD process. These include requiring a higher number of inspections before assessing the motor carrier's performance, a higher number of inspections with violations before making an SFD, and using absolute failure standards equivalent to higher compliance levels than SMS uses for prioritization. Because SMS intervention thresholds are lower than the proposed thresholds for SFD, under this proposal it is very unlikely that a proposed unfit SFD would be the first time that the Agency had an intervention with the motor carrier. Most often, the motor carrier would have been subject to previous interventions, such as warning letters, focused reviews, and/or civil penalty enforcement actions. If the safety deficiencies were not corrected, however, the carrier could ultimately meet or exceed the safety failure standards that result in a proposed unfit SFD.

VII. Revised SFD Appeals Process

After receiving a proposed unfit safety fitness determination, a motor carrier would have various administrative proceedings available to it before the proposed determination becomes final.[76] In this proposal, four different administrative proceedings would be available. However, consistent with current procedures, requests for administrative reviews would not automatically stay the unfit determination.

A. Administrative Review of Material Errors

This proposal would continue the existing administrative review procedure to challenge alleged errors committed in assigning the proposed unfit SFD. These requests are decided by FMCSA's Assistant Administrator. The proposed administrative review procedures in revised 49 CFR 385.15 would provide sufficient opportunity Start Printed Page 3585for a motor carrier to allege errors in an SFD, including allegations of error in the validity of violations recorded on a driver/vehicle inspection report, even where State administrative or judicial proceedings might not be adequate or available. The burden of proof for this review would remain with the motor carrier. Such review would now have to be sought within 15 days after service of the notice of proposed unfit SFD. If no such review is sought within 30 days after service of the notice, or the Agency does not agree with the allegations of material error, the proposed unfit SFD may become a final unfit SFD as described above.

As indicated above, FMCSA proposes to reduce the time for filing a petition for administrative review from the current maximum of 90 days to 15 days after the issuance of the proposed unfit SFD. FMCSA specifically requests comment on this proposed change in the general time for filing of petitions for administrative review, which will ensure that decisions will be made before the statutory time periods expire.

B. Claiming Unconsidered Inspection Data

The second proposed administrative review procedure would be new and would provide for review based on missing data. Requests for such review would be decided by FMCSA's Field Administrators [77] of the FMCSA Service Center responsible for the State, province, or country where the carrier's principal place of business is located. Procedures would be added at new § 385.16 for administrative review of an unfit determination that allegedly did not include all reported data from qualifying inspections of the motor carrier's vehicles or drivers, such as missing inspections citing no violations during the SFD period. For this new review, the burden of proof to show that the missing data would impact the proposed unfit SFD would rest with the motor carrier. This review would have to be requested within 10 days after service of the notice of proposed unfit SFD.

C. Requests To Operate Under a Compliance Agreement

The third proposed administrative process would revise FMCSA's existing process by allowing carriers that have a proposed unfit SFD to defer the final unfit SFD and continue to operate under a compliance agreement. The carrier would submit a corrective action plan and would agree to monitoring and performance terms. If the corrective action plan is found to be acceptable to the Agency, the motor carrier could operate under a compliance agreement. This proposal would not remove the proposed unfit determination unless the terms of the compliance agreement were met throughout an agreed upon period of time. In addition, the Agency's Web site would reflect that a motor carrier would be operating under a compliance agreement during the agreement period.

To initiate this process, a carrier would have to submit an acceptable corrective action plan within the time frames specified in proposed § 385.17(d). To be accepted, a corrective action plan would have to demonstrate that the carrier is willing and able to comply with applicable safety statutes and regulations and demonstrate significant changes in its deficient safety management processes. For example the carrier may have to demonstrate clearly defined safety policies and procedures, documented organizational roles and responsibilities for safety compliance, written qualification and hiring standards, training and communication plans, and ongoing compliance monitoring and tracking procedures. Other potential requirements might include, but would not be limited to, installing safety technology, providing reports or other documents, and training. While decisions on the terms of each compliance agreement would be made by FMCSA, standard requirements would include: (1) Monitoring for a defined period of time; and (2) strict safety performance standards that would have to be met or the carrier would be immediately declared unfit. Motor carriers would be expected to maintain performance below the SMS intervention thresholds established in the agreement. See Table 3 earlier in this preamble for the current SMS intervention thresholds. Meeting the terms of the compliance agreement for an agreed upon period of time with inspections would provide evidence that the motor carrier was willing and able to comply with applicable statutes and regulations and would result in withdrawal of the proposed unfit SFD. A motor carrier would have limited opportunities for administrative review of any action denying it an entry into a deferral and compliance agreement.

D. Requests To Resume Operations After a Final Unfit Determination

The fourth unfit SFD administrative review available to a motor carrier would be added to establish the new procedures that a motor carrier would follow to resume interstate motor carrier operations following a final unfit SFD. FMCSA would require a motor carrier that has received a final unfit SFD, and wants to begin operating again, to have its safety fitness evaluated. The carrier would also need to have received new safety registration and, if necessary, new operating authority.[78]

Therefore, an unfit motor carrier would be required to submit a corrective action plan with its applications for USDOT and operating authority registration. The corrective action plan must describe the actions the motor carrier completed or is taking to address its safety deficiencies. An unfit motor carrier must receive approval of its corrective action plan from the appropriate Field Administrator before FMCSA would issue a new registration for the motor carrier.

The unfit motor carrier would also be required to demonstrate to FMCSA that it meets the safety fitness standard and is willing and able to comply with all statutory and regulatory requirements before receiving an updated registration to operate. Finally, the unfit motor carrier would have to participate in the New Entrant Safety Assurance Program—subpart D of part 385, or, if applicable, either subpart B of part 385 for Mexico-Domiciled Carriers or subpart H of part 385 for New Entrant Non-North America-Domiciled Carriers, upon resuming motor carrier operations in the United States.

E. Carriers Expected To Receive a Final Unfit SFD

FMCSA estimates that 364 more motor carriers than the number that currently receive a final unsatisfactory safety rating will receive a final unfit SFD after one or more of the administrative review proceedings discussed above. However, these four proceedings provide greater opportunities for motor carriers to comply with the federal safety regulations. For carriers that would have been rated unsatisfactory under the old methodology and would be determined to be unfit under the new methodology, the proposed appeals proceedings give them an opportunity to continue operating while complying with the federal safety regulations under more intense scrutiny from FMCSA. Carriers that do not successfully appeal the proposed unfit SFD, or that choose not to appeal or submit a corrective action plan, would receive a final determination of unfit. In addition, in instances where a motor carrier is Start Printed Page 3586operating under a compliance agreement, a carrier would be issued a final unfit SFD if it violates any of the terms specified in the compliance agreement.

Using MCMIS data from September 2010 to September 2012, the Agency analyzed the hypothetical effect of this proposed compliance agreement rule. The results of the Agency's analysis showed that 490 motor carriers would have received a proposed unfit SFD in the first month of the analysis period—September 2010. To determine how many carriers would receive a final unfit determination within the next 24 months after entering into a compliance agreement in September 2010, the Agency assumed that a carrier with a proposed unfit determination would be required to operate below the more stringent SMS intervention thresholds noted in Table 3 above.

Of the 490 carriers that would have received proposed unfit SFDs in the first analyzed month of September 2010, the Agency's analysis showed that 74 (15%) went inactive or ceased operations within 24 months. Of the remaining 416 carriers, 122 (29%) never had sufficient data in the next 24 months to recalculate their performance measure and, therefore, would be found unfit. Another 169 (41%) would have had sufficient data and would have continued to observe the terms of their compliance agreement and then the proposed unfit would have been retracted, and 125 (30%) would be out of compliance at some time before September 2012 and would be found unfit. This baseline analysis indicated that about half (48%) of the final unfit determinations would occur within the first 6 months of the compliance agreement. The Agency acknowledges that the real rate of carriers becoming unfit is expected to be lower because these carriers would be aware of the consequences of failing to comply with the regulations.

VIII. Implementation of and Transition to Final Rule

A. Proposed MCSAP Requirements

FMCSA proposes one revision to the conditions required for the Agency to provide funds under its MCSAP grant program. FMCSA proposes to amend existing 49 CFR 350.201(a) to add the phrase “by enforcing orders on commercial motor vehicle safety and HM transportation safety.” This change would make it clear that States receiving MCSAP grants would be expected to enforce various orders issued by FMCSA, for example, motor carrier out-of-service orders entered by FMCSA under 49 CFR 385.13, 386.72, 386.73, 386.83, or similar provisions. This provision would assist the stopping of vehicles at the roadside when they are operated by motor carriers that disregarded such out-of-service orders, thereby preventing them from continuing to operate CMVs on the Nation's highways. FMCSA notes that for-hire carriers determined to be unfit will have their operating authority revoked. Therefore, each of the company's vehicles are currently required to be placed out of service during a roadside inspection.

For this population of unfit carriers, the proposed change to the MCSAP rules would impose no additional burden on the States. However, for private motor carriers and exempt for-hire carriers, some States may need legislative or regulatory action to enable their roadside inspectors to place CMVs operated by these carriers out of service. The States would have 3 years from the effective date of the final rule to accomplish these legislative or regulatory actions. FMCSA specifically seeks comments on the impacts to the States from these changes and requests information on implementation impacts that should be considered in finalizing this rule.

B. Implementation of a Final Rule and Transition Provisions

FMCSA proposes to begin applying the proposed methodology to all motor carriers registered with the Agency on the effective date of the final rule. FMCSA proposes that the final rule be effective 90 days after publication. As a result, the proposed unfit SFDs would result from failed BASICs resulting from the monthly update of inspection data or from an investigation initiated on or after the 91st day after publication of the final rule.

FMCSA seeks comments on how the Agency might phase in the implementation of the final rule to lessen the initial burden on the motor carrier industry, the Agency, and its enforcement partners.

FMCSA also proposes procedures for carriers that receive a notification of safety rating and fitness determination under the current provisions of 49 CFR 385.11 in the period before this proposed rule is issued as a final rule and becomes effective. Proceedings regarding fitness determinations for such carriers, including administrative reviews under 49 CFR 385.15 and corrective action plans under 49 CFR 385.17, would continue to be handled under the provisions in existence when the proceeding was initiated until those proceedings are completed.

C. General Statements of Enforcement Policy Regarding Violation Severity Weights and Time Weights

The explanation of the SFD methodologies are contained in proposed appendix B to part 385. Although most elements of appendix B are proposed as regulations, FMCSA proposes to issue certain other elements of appendix B as guidance for regulated entities and the public in the form of general statements of enforcement policy. Such statements would be included as part of the text of appendix B and published in the Federal Register (and the Code of Federal Regulations), but they would be designated in the final rule as general statements of enforcement policy.

The elements of the proposed SFD methodology that would be treated as statements of enforcement policy in appendix B to part 385 would include the following:

1. Violation Severity Weights in Tables 1 to 5 in section 5 of appendix B to part 385; and

2. Time Weights for violations in BASICs in section 2.3.2 of appendix B to part 385.

Safety-based violations documented through inspections and associated with each BASIC are assigned severity weights. The stronger the relationship between a violation and crash risk, the higher its assigned weight. The Agency based these weights on the “Carrier Safety Measurement System (CSMS) Violation Severity Weights” [79] study (December 2010) that quantifies the associations between violation and crash risk. FMCSA adds additional weight for violations that result in a driver or vehicle being placed OOS. This study details how the Agency assigns the violation severity weights.

Publication of the severity and time weights as guidance would advise affected persons and the public of the details of the methodology that the Agency expects to follow. At the same time, it would allow the Agency the flexibility to modify these minor technical elements of the proposed methodology, as needed, based on experience and additional data.

Future revisions or adjustments of these elements would be published in the Federal Register, together with an explanation of the basis for the changes. They would not be operative until such publication occurred. If appropriate, public comment would be sought on possible changes in the guidance Start Printed Page 3587elements before final publication and implementation.

As explained earlier in this preamble, American Trucking Associations, Inc. v. U.S. DOT[80] and other judicial decisions recognize that agencies are to be afforded some deference in determining the level of specificity called for in regulation and related interpretive guidance. Publishing some elements of the SFD methodology as guidance is similar to procedures used in other aspects of the Agency's safety regulations. Adjustments to the severity and time weights would be similar, for example, to the adjustments in the threshold crash rates and out-of-service rates for determining when a motor carrier can be issued a Hazardous Materials Safety Permit.[81] If the Agency decides to treat any elements of the proposed methodology as guidance, the final rule will clearly identify those elements, publish them with the final rule, and indicate that they are subject to change in accordance with the procedure outlined above.

IX. Section-by-Section Description of Proposed Rule

To implement the proposed SFD methodology, FMCSA would amend parts 350, 365, 385, 386, 387, and 395. The primary changes would be in subpart A (§§ 385.1 through 385.21) and appendix B to part 385. Most regulatory changes are to the terms used in the proposed new methodology. FMCSA proposes to make conforming changes in all the places where the terms “satisfactory,” “conditional,” “unsatisfactory,” “less than satisfactory,” and “rating” occur. These include subparts B, D, E, F, H, and I in part 385, as well as part 350, part 365, appendix B to part 386, subparts A and C of part 387, and part 395.

A. Part 350

FMCSA proposes to amend existing 49 CFR 350.201 to add the phrase “by enforcing FMCSA orders on commercial motor vehicle safety and hazardous materials transportation safety and by” in paragraph (a). This provision would make it clear that States receiving MCSAP grants would be expected to enforce various orders issued by FMCSA, for example, motor carrier out-of-service orders and Orders to Cease Operations entered by FMCSA under 49 CFR 385.13, 385.325, 386.72, 386.73, 386.83, or similar provisions for for-hire and private motor carriers. This provision would assist FMCSA in stopping vehicles at the roadside that are operated by motor carriers that disregard such out-of-service orders, and would prevent them from continuing to operate CMVs on the Nation's highways.

B. Part 365

FMCSA proposes to revise §§ 365.109(a)(3) and 365.507(f) to make the language consistent with the proposed new methodology.

C. Part 385

Section 385.1 Purpose and Scope

Conforming amendments would be made to paragraph (a) of this section, to delete references to “safety ratings” and “unsatisfactory.” Current text directing motor carriers to take remedial action when required, and prohibiting motor carriers determined to be unfit from operating a CMV, would remain.

Section 385.3 Definitions and Acronyms

Roughly half of the definitions in § 385.3 would remain substantially the same. However, definitions for the terms “Reviews” and “Safety rating or rating” (including all four subsidiary definitions) would be removed. Definitions of the terms “Acute regulation,” “Assistant Administrator,” “Behavior Analysis and Safety Improvement Category,” “Compliance review,” “Comprehensive investigation,” “Crash,” “Critical regulation,” “Failure standard,” “Field Administrator,” “Inspection,” “Intervention,” “Investigation,” “Measure,” “Operating authority registration,” “Performance standard,” “Registration,” “Roadability review,” “Safety audit,” “Safety event group,” “Safety management controls,” “Safety registration,” and “Unfit” would replace the deleted terms with language to reflect the new SFD terminology and procedures. The new definition of “Compliance review” is much shorter than the definition under “Reviews . . . (1) Compliance review” that is being removed. The current version has extraneous information, such as when such a review may be done and what a possible outcome could be, which is not directly relevant to defining what the term means. The substantive definition of “Preventable accident” would not change, but the term itself would be changed by replacing the word “accident” with the word “crash.” FMCSA uses the terms “crash” and “accident” interchangeably, but prefers the term “crash.”

Section 385.5 Safety Fitness Standard

The section would be revised to add a new paragraph (a) to reflect the inclusion of the alcohol and controlled substances testing requirements in 49 CFR parts 40 and 382. Current paragraphs (a) through (k) would be redesignated as (b) through (l). In addition, in the second sentence of the undesignated introductory paragraph of this section, the words “To meet the safety fitness standard” would be replaced by “To avoid a safety fitness determination of unfit.”

Section 385.7 Factors To Be Considered in Making a Safety Fitness Determination

This section would be revised to add the main data elements of the proposed methodology. The proposed changes to this section would specifically include, in the factors to be considered in the SFD process, information obtained from driver/vehicle inspections, crashes, or investigations. The title of § 385.7 would be changed by replacing the words “determining a safety rating” with the words “making a safety fitness determination,” so that the title would read “Factors to be considered in making a safety fitness determination.”

In the first sentence of the undesignated introductory paragraph, all the words after “The factors to be considered . . .” would be removed and replaced with language stating that the factors to be considered during a safety fitness determination may include information from operations in the United States, Canada, and Mexico from driver/vehicle inspections, an examination of the carrier's records during investigations, or crash data. FMCSA would also remove the term “safety review” because it is obsolete.

Paragraph (a) would be changed by replacing the word “accidents” with the word “crashes.” As was stated in the analysis for § 385.3, FMCSA uses the terms “crash” and “accident” interchangeably, but prefers the use of the term “crash.” Paragraphs (b), (c), (d) and (e) would be revised to set out the different sources of data and the factors considered in the new methodology. In addition, the word “accident” would be replaced with “crash.” Existing paragraph (g) would be redesignated as new paragraph (f). In redesignated paragraph (f), the term “hazardous material,” would be added between the words “CMV” and “and motor carrier safety rules.” A new paragraph (g) would be added to provide for the admissibility as evidence in safety fitness proceedings inspection reports Start Printed Page 3588and data contained in FMCSA's data systems.

Section 385.8 Service and Filing of Documents

A new section 385.8 is proposed to be added to provide specific and clear rules governing the filing and service of documents in safety fitness proceedings.

Section 385.9 Determining a Carrier's Safety Fitness

The title of § 385.9 would be changed to read “Determining a carrier's safety fitness.”

Paragraph (a) would be revised to describe the new methodology in proposed new appendix B to part 385. The proposed appendix describes in detail the methodology and the standards for determining a carrier's fitness.

Existing paragraph (b) would be redesignated as new paragraph (d) and everything after the phrase “Unless otherwise specifically provided in this part, a” would be changed to state that safety fitness determination based upon an investigation of a carrier's safety management controls in accordance with the standard set forth in § 385.5(a) will be issued as soon as practicable. A new paragraph (b) would be added to clarify that a motor carrier's SFD will be based on data received through the date of the proposed SFD under § 385.11(c).

A new paragraph (c) would be added to clarify that the motor carrier's status as unfit would not change during the administrative review process under either § 385.15 or § 385.16, or a review of a request under § 385.18. This new paragraph utilizes a provision moved from current § 385.17(j) with revisions for clarification.

Section 385.11 Notification of Unfit Safety Fitness Determination

Throughout this section, including the heading, changes are made to conform the language to the proposed methodology. In paragraph (a), the words “safety rating resulting from a compliance review” and “the review” would both be replaced by the words “unfit safety fitness determination.” Also, FMCSA is replacing the phrase “FMCSA's headquarters office” in the last sentence of paragraph (a) with the word “FMCSA”. This change would allow the Agency to issue the proposed unfit SFD notice from other FMCSA offices that may be closer to the subject motor carrier or may allow the Agency to realize savings for labor and production costs or contracted services in markets other than Washington, DC Provisions would be added governing service of the notice of proposed unfit SFD on representatives of the carrier in accordance with new § 385.8.

Existing paragraph (b) would be removed because it would no longer be applicable to this proposed rule.

Existing paragraphs (c) through (e) would be redesignated as new paragraphs (b) through (d) with appropriate terminology changes in each paragraph. A new paragraph (e) would be added to alert a motor carrier that it may request FMCSA to perform an administrative review of a proposed or final unfit SFD based upon a claim of unconsidered inspection data as described in proposed new § 385.16.

Existing paragraph (f) would be amended to include appropriate terminology changes to reflect the use of compliance agreements instead of corrective action plans to defer the entry of a final unfit SFD.

A new paragraph (g) would be added to alert a motor carrier of the process set out in new § 385.18 for applying to resume operations after an SFD has become final.

Section 385.12 Revocation Procedures for Unfit Safety Fitness Determinations

A new § 385.12 would provide that issuance of proposed safety fitness determination would also serve as notice to the carrier that its registration would be revoked if the fitness determination becomes final.

Section 385.13 Unfit Motor Carriers: Prohibition on Transportation; Ineligibility for Federal Contracts

Most of the changes we are proposing in this section are conforming amendments to reflect the nomenclature of the proposed methodology. For example, the words “unsatisfactory safety rating” would be replaced throughout with “unfit safety fitness determination.” Paragraph (a)(2) would be amended by removing the last sentence that allows a motor carrier to operate for up to 60 additional days if FMCSA determines that the motor carrier is making a good-faith effort to improve its safety fitness. Although this provision is allowed by statute,[82] in the interest of safety FMCSA disfavors such extensions, and the Agency is therefore not expressly restating the permissive language in the proposed regulation.

Paragraph (b) would consolidate the existing provisions of paragraphs (b) and (c) prohibiting a Federal agency from using any motor carrier receiving a final unfit determination.

The date the out-of-service order issued under paragraph (d) becomes effective would be the date that the SFD becomes final under paragraph (a). FMCSA seeks comment on this approach. Provisions would also be in revised paragraph (e) to allow for revocation of safety registration and any operating authority registration for any motor carrier receiving a final unfit determination.

Section 385.15 Administrative Review—Material Error

This section is largely based on current administrative review provisions, with some revisions and additions. First, in several paragraphs, the terms “safety rating” or “rating” would be replaced by the term “safety fitness determination,” and the word “unsatisfactory” would be replaced with “unfit.” The title “Assistant Administrator” would be substituted for “Chief Safety Officer.” While Assistant Administrator and Chief Safety Officer are titles for the same position within FMCSA, the change in terminology is made for consistency with the administrative review provisions of 49 CFR part 386.

A new paragraph (b) would specify the minimum requirements for the contents of the petition. New provisions would be added to paragraph (c) to require that the original petition for administrative review be served on the appropriate Field Administrator (which would be the official filing). Copies of the petition for administrative review would also be required to be served both on: (1) Adjudications Counsel for the Assistant Administrator; and (2) with the Agency through the U.S. Department of Transportation, Docket Services. Paragraph (c) also provides the time limits within which a motor carrier must petition for administrative review.

A new paragraph (d) provides the Field Administrator with an opportunity to respond to the petition for administrative review.

Paragraph (e) would allow the Assistant Administrator to ask the motor carrier or the Field Administrator for more information or to attend a conference. If the motor carrier did not provide the information, the Assistant Administrator could dismiss the request for review.

Paragraph (f) would establish the time for a decision by FMCSA on the request for review and provide time frames within which FMCSA would complete its review as soon as practicable.

Paragraph (g) would provide for a standard of review that places the burden on the motor carrier to show material error. It also provides a definition of what constitutes material error for the purpose of such review.Start Printed Page 3589

Proposed paragraph (h) provides that the Assistant Administrator makes the final and conclusive decision as to the compliance and inspection data underlying the SFD. It also establishes that in subsequent administrative reviews the Assistant Administrator will not re-review factual matters decided in a prior administrative review.

Proposed paragraph (i) provides that a decision by the Assistant Administrator constitutes final Agency action unless reconsideration is requested.

Proposed paragraph (j) provides the procedures for either the motor carrier or the Field Administrator to petition the Assistant Administrator for reconsideration of a decision. However, the petition does not stay the imposition of a final SFD unless a stay is granted by the Assistant Administrator pursuant to new paragraph (k).

Section 385.16 Request for Review Claiming Unconsidered Inspection Data

Proposed paragraph (a) would provide that a motor carrier may file a request for FMCSA to conduct an administrative review of a proposed unfit SFD because of unconsidered, valid data from an inspection that occurred before the proposed determination. The request would be based on a motor carrier's determination of an FMCSA failure to include inspection data which, if included, would have resulted in a different SFD.

Proposed paragraph (b) would provide that the motor carrier must file its request for administrative review in writing and serve it on the appropriate Field Administrator.

Proposed paragraph (c) would provide that the motor carrier's request for an administrative review of a proposed SFD with unconsidered inspection data must include specific information to be considered a valid request.

Proposed paragraph (d) would provide that such a request must be filed no later than the 10th day after the issuance of the proposed unfit.

Proposed Paragraph (e) would provide that FMCSA would issue a decision and notify the carrier within 10 days after receiving a request from an HM or passenger motor carrier that has received a proposed unfit SFD, and within 20 days after receiving a request from any other motor carrier.

Proposed Paragraph (f) would provide the standard of review of the submitted unconsidered inspection data. The burden of proof would be on the motor carrier to demonstrate that FMCSA did not include all inspection report data.

Proposed paragraph (g) would provide that the decision of the Field Administrator would constitute final Agency action, and no additional request for administrative review by FMCSA would be available. Paragraph (h) would provide that a stay of the final SFD could be requested from and granted by the Field Administrator.

Section 385.17 Request To Defer Final Unfit Safety Fitness Determination and Operate Under a Compliance Agreement

This section is based on the current provisions of § 385.17, with significant revisions, primarily to include the use of compliance agreements between FMCSA and the motor carrier to defer a final unfit determination. Throughout the section, the language would be changed to conform to the proposed SFD methodology. In several places, the term “safety rating” or “rating” would be replaced by the term “safety fitness determination.” FMCSA would also replace the word “unsatisfactory” with “unfit,” wherever it occurs. In paragraph (a), the Agency would also remove the term “conditional.”

Existing paragraph (b) would be revised to require service of the request on the appropriate Field Administrator in accordance with proposed new § 385.8. Existing paragraph (c) would be expanded to address the documentation a motor carrier must submit to show that it has taken appropriate corrective action. Paragraph (d) would set the time for submission of a request for deferral and to operate under a compliance agreement. Failure to submit a timely request for deferral and to continue to operate under a compliance agreement would waive any opportunity to seek such administrative relief.

Existing paragraphs (e) through (j) would be removed and replaced with new paragraphs that would establish the procedures and standards for operating under a compliance agreement, as well as providing for the appropriate outcomes if the carrier either complies with or does not comply with the terms of the compliance agreement. Paragraph (f) provides that the Field Administrator's actions either deferring a final SFD or declining to enter into a compliance agreement would not be subject to administrative review, except in certain limited circumstances involving an abuse of discretion, as specified in paragraph (j).

Section 385.18 Resuming Operations After a Final Unfit Determination

A new § 385.18 would be added to describe the procedures a motor carrier would follow to resume interstate and intrastate motor carrier operations following an unfit SFD. In paragraph (a), FMCSA would require a motor carrier that has received a final unfit SFD and wants to begin operating again to demonstrate why it should no longer be considered unfit. The carrier would also need to have received reactivated safety registration and, if required, new operating authority registration. The procedures in this section may be revised in the final rule in order to coordinate with any changes proposed or adopted for the Agency's “MAP-21 Enhancements and Other Updates to the Unified Registration System,” Regulatory Identification Number 2126-AB56.

Paragraph (b) would inform the unfit motor carrier that it must submit a corrective action plan (CAP) consistent with § 385.17(c) along with its applications for safety and operating authority registration. The corrective action plan must describe the actions the motor carrier is taking to resolve its safety deficiencies.

Paragraph (c) would provide that the corrective action plan submitted by the unfit motor carrier must be acceptable to FMCSA, and the carrier and the Agency would have to enter into a compliance agreement that conforms to § 385.17(c) and (e) before new registration could be issued.

Paragraph (d) would inform the motor carrier that it may not resume operations until it is notified that it has been granted registration and its USDOT number is active.

Section 385.19 Availability of Safety Fitness Determinations

The heading of § 385.19 would be revised to read, “Availability of safety fitness determinations.” In paragraph (a), the word “ratings” would be replaced by “fitness determinations.” FMCSA would also replace the outdated phrase “by remote” with the phrase “on the Internet available through” to inform the public that final SFDs will be available on the Agency's Web site.

Paragraph (b) would change the method the Agency would use to make final SFDs and would make information about carriers operating under a compliance agreement available to the public.

Section 385.21 Transition Provisions

A new § 385.21 would be added containing transition provisions that would govern the status of motor carriers that have been issued a final determination of unfit on the basis of an unsatisfactory safety rating under the current procedures. In addition, paragraph (b) contains proposed procedures for carriers that receive a notification of safety rating and fitness determination under the current provisions of 49 CFR 385.11 in the Start Printed Page 3590period immediately before these proposed rules would go into effect.

Subpart B (§§ 385.101-385.117)—Safety Monitoring for Mexico-Domiciled Carriers

FMCSA proposes several conforming amendments to 49 CFR part 385, subpart B, Safety Monitoring System for Mexico-Domiciled Carriers, in light of the proposed changes to the general safety fitness procedures. FMCSA proposes to make conforming amendments to §§ 385.101, 385.105, 385.109, and 385.117.

Currently, Mexico-domiciled carriers seeking permanent operating authority to operate beyond the municipalities and commercial zones on the United States-Mexico border must fulfill certain statutory requirements, including obtaining a satisfactory safety rating after a compliance review under 49 CFR part 385. This proposal, however, would change the number of fitness categories from three to one—“unfit.” As proposed, a carrier that is not determined to be unfit would have an acceptable degree of safety fitness and would not be prohibited from operating in commerce.[83] Therefore, for the purposes of the requirements of section 350 of the 2002 Department of Transportation Appropriations Act, and subsequent appropriations,[84] a comprehensive investigation resulting in a determination that a Mexico-domiciled motor carrier seeking permanent operating authority is not unfit would be equivalent to a compliance review and finding that the carrier has received a satisfactory rating.

For several reasons, FMCSA believes that the proposed SFD process for long-haul Mexican carriers would be sufficiently stringent to satisfy Congress's intent that carriers possess a satisfactory degree of safety. First, a Mexico-domiciled carrier must satisfactorily complete the FMCSA-administered Pre-Authorization Safety Audit (PASA) required under 49 CFR part 365, to ensure the existence of sound management programs, including compliance with controlled substances, alcohol, and hours-of service regulations, before it is granted provisional authority to operate in the United States. Second, the proposed methodology in Appendix B is more stringent than the current methodology for determining safety fitness, and this proposal for conforming changes ensures continued stringent and comparable oversight of long-haul Mexican carriers. As a result of this proposal, Mexican carriers could be proposed unfit based on on-road safety data, or an investigation, or a combination of these two sources of data. Under 49 CFR 385.119, Mexico-domiciled motor carriers are subject to the safety monitoring system in part 385, subpart B. They are also subject to the general safety fitness procedures established in subpart A of part 385 and to compliance and enforcement procedures applicable to all carriers regulated by the FMCSA.

Subpart C (§§ 385.201-385.205)—Certification of Safety Auditors, Safety Investigators, and Safety Inspectors

FMCSA proposes conforming amendments to 49 CFR part 385, subpart C, Certification of Safety Auditors, Safety Investigators, and Safety Inspectors. In light of the proposed addition of the term “investigation” in relation to the types of interventions that may result in an unfit SFD, FMCSA would amend §§ 385.201 and 385.203.

Currently, an FMCSA employee, or a State or local government employee funded through the MCSAP, must be certified to perform a compliance review, safety audit, roadability review, or roadside inspection.[85] Certified FMCSA, State, and local government employees must obtain and maintain certification through quality-control and periodic re-training requirements adopted by FMCSA in 2002 to ensure the maintenance of high standards and familiarity with amendments to the FMCSRs and HMRs.[86]

The proposed SFD relies to a much greater extent on on-road safety data and investigations, regardless of whether the investigations are done offsite, onsite, or are focused or comprehensive. Because this proposal would replace the term “compliance review” in many places throughout the FMCSRs, FMCSA needs to add “investigation” to the types of interventions for which FMCSA, State, and local government employees must obtain and maintain certification as required by statute.

FMCSA proposes to add the phrase “an investigation” before the phrase “a compliance review” wherever it appears in §§ 385.201 and 385.203. This proposal would require that any FMCSA, State, or local government employee who performs any review of a motor carrier's operations to determine compliance with the appropriate regulations (i.e., the FMCSRs and HMRs as defined in 49 CFR 385.3) be certified as required by 49 U.S.C. 31148.

Section 385.307—What happens after a motor carrier begins operations as a new entrant?

FMCSA would modify the New Entrant Safety Assurance Program by adding a new paragraph (a) to § 385.307 and redesignating current paragraphs (a), (b), and (c) as paragraphs (b), (c), and (d). This proposed new paragraph (a) would adopt provisions similar to §§ 385.119 and 385.717 on the continuing applicability of safety fitness and enforcement procedures. FMCSA proposes to add this provision to ensure that each new entrant is aware that during the monitoring period under the New Entrant Safety Assurance Program, these new entrants are subject to:

(1) The general safety fitness procedures established in subpart A of part 385 and any final rule modifying subpart A; and

(2) Compliance and enforcement procedures applicable to all carriers regulated by FMCSA.

Part 385, Subpart E (Sections 385.407, 385.409, 385.413, 385.421, and 385.423)—HM Safety Permits

FMCSA proposes conforming amendments to 49 CFR part 385, subpart E, HM Safety Permits. Sections 385.407, 385.409, 385.413, 385.421, and 385.423 would all be changed to reflect changes in the language and procedures for the SFD methodology proposed in this rulemaking.

Section 385.503 Results of Roadability Review

In § 385.503(a), FMCSA proposes to delete the term “safety rating” and replace it with the term “safety fitness determination,” to conform the language to the proposed SFD methodology.

Part 385 subparts H (§ 385.607) and I (§§ 385.701, 385.707, 385.709, 385.711, 385.713, and 385.715)—Non-North America-Domiciled Carriers

FMCSA proposes conforming and nomenclature changes to the Non-North America-domiciled carrier provisions, Start Printed Page 3591part 385, subparts H (§ 385.607) and I (§§ 385.701, 385.707, 385.709, 385.711, 385.713, and 385.715). These changes are largely parallel to the changes to all other motor carriers, explained above.

Appendix B to Part 385 Explanation of Safety Fitness Determination Methodology

Because appendix B to part 385 would set out all of the proposed SFD methodology, it would be considerably changed. FMCSA would replace certain terms in the headings and body of appendix B consistent with the changes discussed above for other sections of part 385. Current terms would be replaced with new terms, including “safety fitness determination” and “unfit.” The codification system for the appendix would be changed to make it easier to reference and amend, and the introductory paragraphs would be considerably revised.

Five Proposed New Sections

Proposed section 1, Safety Fitness Determination (SFD) Background, would serve as a roadmap for appendix B. It incorporates the sense of what is currently in introductory paragraphs (a), (b), and (c) of existing appendix B, much changed to reflect the proposed new methodology. Existing paragraphs (d), (e), and (f) would be removed.

Proposed section 2, Role of BASICs in the SFD Process, describes the BASICs, their data sources and the process for determining a failed BASIC. Under section 2.4, SFD BASIC Failure Standards, sections 2.4.1 through 2.4.7 describe the mechanics for determining the severity for each applicable BASIC violation. They provide tables of failure standards, where appropriate, and descriptions of applicable violations. Tables 2-1 through 2-8 of proposed section 2 show the proposed SFD BASIC failure standards. The proposed failure standards are equivalent to the measures that would place a motor carrier at the 96th percentile for the Unsafe Driving and HOS Compliance BASICs and the 99th percentile for the Driver Fitness, Vehicle Maintenance, and Hazardous Materials (HM) Compliance BASICs for each safety-event group on the day the requirements are established when the final rule is published.

Proposed section 3, Investigation Results in the SFD Process, describes the violations that the Agency would use to determine safety fitness for each motor carrier. The proposed critical violations are listed in Table 3-1 of proposed section 3. The proposed acute violations are listed in Table 3-2. The standards and procedures for assessing a carrier's crash experience for safety fitness purposes are described in section 3.3 of appendix B.

Proposed section 4, SFD Methodology, describes the proposed methodology, including the criteria for a carrier receiving an unfit determination. Section 4 provides an example of a proposed SFD worksheet, and it also gives several examples of how SFDs could be calculated for sample motor carriers.

Proposed section 5, Appendix B Violation Severity Tables, contains five tables that describe violations and the applicable severity weightings for the five BASICs that use such weights as part of the determination of safety performance under SMS. They are:

  • Table 1 Unsafe Driving BASIC Violations
  • Table 2 HOS Compliance BASIC Violations
  • Table 3 Driver Fitness BASIC Violations
  • Table 4 Vehicle Maintenance BASIC Violations
  • Table 5 Hazardous Materials Compliance BASIC Violations

FMCSA is considering the use of low, medium, and high weightings rather than the numeric weightings currently used in SMS and specifically seeks comments on this issue.

Certain Portable and Cargo Tank Citations in Table 5

In Table 5 of the violation severity tables, HM Compliance BASIC Violations, 43 violations of 49 CFR part 178 have been marked with a ([1] ) or a ([2] ) to indicate their dates of publication in the Code of Federal Regulations.[87] These 43 violations are HM portable tank and cargo tank specification packages that PHMSA allows motor carriers to continue to use if the HM tanks are maintained properly in accordance with applicable regulations.[88]

The applicable regulations for MC 330 compressed gas cargo tanks are referenced in Table 5 with a ([1] ). Current PHMSA regulations [89] authorize continued use of specification MC 330 cargo tanks if the tanks are maintained according to the applicable cargo tank testing and inspection regulations.[90]

The applicable regulations for DOT 51, 56, and 57, and IM 101 and 102, portable tanks are also referenced in Table 5 with a ([1] ). DOT 51, 56, and 57, and IM 101 and 102 portable tanks may continue to be used in commerce, if the tanks are maintained according to the applicable portable tank testing and inspection regulations.[91]

The applicable regulations for MC 306, 307, and 312 concerning cargo tanks are referenced in Table 5 with a ([2] ). Current PHMSA regulations [92] authorize continued use of specification MC 306, 307, and 312 cargo tanks if the tanks are maintained according to the applicable cargo tank testing and inspection regulations.[93]

FMCSA will make the applicable former rules for these HM specification tanks, as well as the applicable ICC and DOT final rules concerning these HM specification tanks, available on the FMCSA Web site at www.fmcsa.dot.gov. These materials are also available through Federal Depository Libraries.[94] Anyone may visit a Federal depository library and will have free access to all collections.

D. Part 386

Appendix B to part 386 would be changed to conform the language to the new SFD methodology. Throughout paragraph (f), everywhere the phrase “final `unsatisfactory' safety rating” appears it would be replaced by the phrase “final unfit safety fitness determination.”

A new paragraph (j) would be added to describe the violations that the Agency proposes to take into account for purposes of section 222 of the Motor Carrier Safety Improvement Act of 1999, Public Law 106-159, 49 U.S.C. 521 note (“Minimum and Maximum Assessments”).[95] Section 222 generally Start Printed Page 3592requires that the Agency assess maximum civil penalties where it finds that a person has either committed a pattern of violations of critical or acute regulations or has previously committed the same or a related violation of critical or acute regulations. The proposed list in new paragraph (j) is different than the proposed lists of critical and acute regulations found earlier in preamble Table 17 and in Tables 3-1 and 3-2 in proposed appendix B to part 385. The proposed list in paragraph (j) is based on regulations currently designated as critical and acute. The critical and acute regulations set forth in Tables 3-1 and 3-2 above include new regulations. The Agency seeks comment whether these should be included for maximum civil penalty assessments under section 222.

E. Part 387

Sections 387.7 and 387.309 would be changed to reflect the proposed new SFD determination methodology, removing references to the former safety rating system.

F. Part 395

Section 395.15 would be changed to reflect the proposed new SFD determination methodology, removing references to the former safety rating system.

X. Regulatory Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review and DOT Regulatory Policies and Procedures as Supplemented by E.O. 13563)

FMCSA has determined that this action is a significant regulatory action within the meaning of Executive Order 12866, as supplemented by Executive Order 13563, 76 FR 3821 (January 21, 2011), and within the meaning of the Department of Transportation regulatory policies and procedures, because the annualized net benefits are $231.1 million and because of the level of public interest. Congress, industry, NTSB, and safety advocates alike have significant interest in how FMCSA determines the safety fitness of motor carriers. All of these groups have expressed concerns over how the Agency currently determines the safety fitness of motor carriers.

The revised SFD would be used to identify and take action against unfit motor carriers that have failed to implement and maintain adequate safety management controls for achieving compliance with the FMCSRs and HMRs. It would also evaluate the degree to which a motor carrier complies with applicable regulations. The additional carriers found unfit under the proposed rule may bear compliance costs to return to compliance, which as discussed further in the separate Regulatory Evaluation are not quantified at this stage of the rulemaking. FMCSA expects that the proposed rule would also impose costs on drivers of carriers ordered out-of-service, specifically, those drivers who would have to search for new driving work. Nevertheless, the new SFD methodology would involve more efficient and effective utilization of currently available data and resources. The Agency's proposed approach would ensure that only the worst performing motor carriers would be issued a proposed unfit determination based solely on on-road safety performance data, while striking a balance between the population identified and the ability of enforcement resources to handle the associated workload. The full Regulatory Evaluation is in the docket for this rulemaking, and a brief summary is set out below.

Under the proposed SFD methodology, every month a carrier's performance would be compared to an absolute failure standard that would be set in regulation based on each safety event group. Because the absolute failure standard would not change from month to month, changes in another company's performance would not impact the motor carrier. The carrier's SFD measure reflects its own performance against the failure standard, not other carriers' performance.

The Agency considered options for failure standards based on absolute measures. Using today's levels of safety performance across all carriers in SMS, these measures would equate roughly to the 95th, 96th, 98th, and 99th percentiles for all carriers in SMS. In addition, before failing the BASIC, the carrier would have to have 11 or more inspections, each with 1 or more violations, for the previous 24-month period. The proposed failure standards for each BASIC, as calculated by analyzing inspections with violations, are presented in tables in the NPRM. The Agency's preferred Option 2 proposes to use the absolute failure standards that equate to the 99th percentile for the Driver Fitness, Vehicle Maintenance, and HM Compliance BASICs. This failure standard, which would be set in the final rule, is equivalent to SMS percentile that defines the worst 1 percent of motor carriers with 11 or more inspections, each with 1 or more violations.

The Regulatory Evaluation in the docket examines two options for failure standards used to identify motor carriers for a proposed unfit SFD. For Option 1, identification of unfit carriers under the proposed process uses failure standards equivalent to the measures that would place a motor carrier at the 95th percentile for the Unsafe Driving and HOS Compliance BASICs and the 98th percentile for the Driver Fitness, Vehicle Maintenance, HM Compliance, and Crash Indicator BASICs. For Option 2 (the Agency's preferred option), these failure standards are equivalent to measures based on the 96th and 99th percentiles, respectively. For example, a carrier at the 96th percentile in the Unsafe Driving BASIC has worse safety performance in that BASIC than 96 percent of carriers. Carriers that are identified at or above these failure standards are proposed as unfit and then either placed OOS or remain in service under a compliance agreement subject to approval by FMCSA.

Carriers that are identified at or above these failure standards would be proposed as unfit and then would be either placed OOS or remain in service under a compliance agreement subject to approval by FMCSA. Motor carriers that remain in service but fail to significantly improve their safety performance within a set period of time under the compliance agreement—for example, those that fail to achieve an appropriate level of compliance with the applicable regulations—would be required to cease operations. That is, the initial proposed unfit determination would be made final.

Under this proposal's preferred Option 2—with the failure performance standards at or above the 96th and 99th percentiles—the proposed method identified 1,805 more poor-performing carriers than the current SFD process, while the current SFD process identified 106 carriers that the proposed unfit SFD method would not, and 1,017 carriers were identified by both the current and proposed methods.

Given that identification and the final unfit date remove a portion of the poorly-performing carriers from active service while the remainder improve their safety performance and remain in service, a portion of the crashes of these carriers that takes place in the next 12 months (from the time of the final unfit) are thus prevented, and comprise the annual benefits of the rule. The annual benefits of the rule are net reductions in crashes that come from switching from the current to the proposed process. The proposed process identifies carriers that suffered an additional 41 fatal crashes (41 = 43−2), 508 injury crashes (508 = 526−18), and 872 tow-away crashes (872 = 887−15) when compared with the current process. Table 19 below Start Printed Page 3593presents a comparison of data between the effectiveness of the current SFD and that proposed in this rulemaking.

Table 19—Annual Crash Reduction From Switch From Current to Proposed SFD for Option 2 (96/99)

Carriers identified as unfit under:RelationCarriersPower unitsCrashesCrash rateFatal crashesInjury crashesTow-away crashes
Proposed SFD AA2,82242,4371,8624.39556881,119
Current SFD BB1,12311,3654413.8814180247
Both Current and Proposed SFDC1,01710,1234064.0112162232
Proposed SFD, But Not Current SFDA—C1,80532,3141,4564.5143526887
Current SFD, But Not Proposed SFDB—C1061,242352.8221815
Net Gain Attributable to Proposed SFDA—B1,69931,0721,4214.5741508872
A The “proposed SFD” category includes 1,017 of the 1,123 carriers identified under the current SFD. Therefore, the “proposed SFD” category is a hybrid of carriers that were proposed unfit that remained in operation by entering into compliance agreements and carriers that would have been proposed unfit if the proposed rule had been in effect during the period studied. Crash rates specific to the subset of carriers identified under the current SFD may reflect improvements in response to receipt of proposed unfit ratings.
B The “current SFD” category consists solely of the 1,123 carriers that were proposed unfit under the current SFD and remained in operation by entering into compliance agreements. Crash rates specific to carriers identified under the current SFD may reflect improvements in response to receipt of proposed unfit ratings.

In 2011, under the current process, 16.1 percent of identified carriers were deemed unfit and ordered OOS upon completion of the SFD process. Relatedly, a pending rating of unsatisfactory under the current process equates such carriers with an SFD of “proposed unfit” under the proposed process. Given the performance comparison between the current and proposed SFD-process-identified groups (as measured by both having crash rates per 100 power units considerably greater than the national average), it is assumed that 16.1 percent of the additional carriers identified under the proposed SFD process will ultimately be ordered out of service.

The remaining 83.9 percent of carriers identified but not ultimately shut down improve their safety-performance. These improvements (specifically, those involving the net differential group of carriers identified by the proposed process relative to the current process) should be credited as benefits to the proposed process. The Compliance Review Effectiveness Model (CREM) [96] estimates the safety improvement of carriers that receive a compliance review, in terms of crashes avoided. For the four most recent years of analysis (since measurement based on fiscal years (rather than calendar years) began in 2005), the estimated percentage reduction in the average crash rate due to compliance reviews was 16.3 percent in 2005, 18.6 percent in 2006, 14.7 percent in 2007, and 19.9 percent in 2008.[97] We assume that issuing a proposed unfit SFD to a carrier identified under the proposed process would result in performance improvement similar to that of a compliance review. Given the year-to-year variability in the estimated reduction from 2005-08, the Agency uses the four-year average for the period of 17.4 percent. As such, the safety improvement percentages estimated in the Compliance Review Effectiveness Model can be applied to the crashes attributed to the 83.9 percent of carriers that were not ordered out of service.

The CREM has several limitations that are common to transportation safety research. For one, there is no pure control group, because FMCSA does not have the option to not intervene with carriers it knows to be unsafe. Workarounds for the lack of pure statistical control are discussed in more detail in the CREM. The newer model, Carrier Intervention Effectiveness Model (CIEM), which has been peer reviewed, uses size group-specific comparison groups and measures the statistical significance of the net improvement in crash rates of reviewed carriers. While the two models' results are not directly comparable due to their differing methodologies, their estimates of crash rate reductions among reviewed carriers have similar orders of magnitude across the carrier size groups.

There is also the potential for “regression to the mean” to obscure the true benefits of interventions. This phenomenon is a possible statistical consequence of the rarity of crash events. It can occur when an individual carrier experiences a period of high crash rate; this is likely to be followed by a period of low crash rate, regardless of interventions or changes in safety practices, simply due to the infrequency of crash events.

However, the low probability of a spike in crashes at any given time makes it unlikely that “regression to the mean” is a substantial contributor to the reduction in crash rate attributed by the CREM to the compliance review process. Carriers that receive a compliance review may not be in the midst of a crash spike. Carriers that have a crash spike may not get a compliance review shortly after the spike. This is because carriers are not primarily selected for compliance reviews based on their current crash rate, but rather their overall safety performance as assessed through roadside inspection and/or investigation results. For “regression to the mean” to be a substantial issue for this analysis, it would need to be the case that carriers are being identified during a period of usually high crash rate for that carrier. As the intervention process is implemented now, if a carrier's crash rate drops after they receive a compliance review, there is no reason to assume that drop is a correction to the carrier's “actual” mean crash rate as opposed to a response to FMCSA's intervention.

Next, consider that most of the services provided by the 16.1 percent of carriers that are ordered out of service are likely to be shifted to new or existing carriers. This contrasts with a crash rate of 4.51 crashes per 100 power units for those carriers identified under the proposed process. This suggests the replacement of an identified carrier with one from the carrier population in general would result in a 52.8 percent improvement (0.528 = (4.51−2.13) ÷ 4.51).[98] The Agency believes that the subset of carriers placed OOS would likely perform worse than the total carrier group identified as unfit by the proposed SFD, and therefore that the 52.8 percent improvement is a conservative estimate for the gains in safety resulting from the replacement of Start Printed Page 3594carriers ordered OOS with carriers of average overall safety performance.

In sum, the safety performance and thus the frequency of crashes attributed to the 83.9 percent of carriers that were not ordered OOS realize an improvement of 17.4 percent, and the safety performance and thus the frequency of crashes attributed to the 16.1 percent of carriers put OOS and replaced by an average carrier realize an improvement of 52.8 percent.

As stated above, the 41 fatal, 508 injury, and 872 tow-away crashes (under Option 2) attributable to the additional carriers identified by the proposed SFD process are where the benefits of the change are realized. Assuming the final rule goes into effect in 2017, the carrier population is assumed to increase at an annual rate of 2.17 percent, and applying that rate to these crashes results in 45 fatal (44.68 = 41 × (1.02174), 554 injury (553.55 = 508 × (1.02174)), and 950 tow-away crashes (950.19 = 872 × (1.02174) in 2017.

Allocating 83.9 percent of these crashes to carriers that improved performance and were not ordered OOS results in 38 fatal, 465 injury, and 797 tow-away crashes apportioned. Allocating the remaining 16.1 percent of crashes to carriers that were permanently put OOS, results in 7 fatal, 89 injury, and 153 tow-away crashes apportioned. Given that the carriers permanently placed OOS are believed by the Agency to have worse safety performance than that of the carriers that improved, proportioning the crashes by percentage results in a conservatively low number of crashes assigned to those put out of service. Since the carriers permanently placed OOS are replaced with ones realizing an improvement of 52.8 percent, rather than 17.4 percent, assigning by proportion results in a conservatively-low estimate of the overall crash reduction of the rule.

The 83.9 percent of carriers opting to make the necessary changes to become compliant realize improvements of 17.4 percent. Given the 17.4 percent improvement, 7 fewer fatal crashes (6.6 = 17.4% of 38), 81 fewer injury crashes (80.9 = 17.4% of 465), and 139 fewer tow-away crashes (138.7 = 17.4% of 797) occur. The 16.1 percent of carriers placed permanently OOS are replaced with carriers realizing improvements of 52.8 percent. Given the 52.8 percent improvement, 4 fewer fatal crashes (3.70 = 52.8% of 7), 47 fewer injury crashes (46.99 = 52.8% of 89), and 81 fewer tow-away crashes (80.78 = 52.8% of 153) occur. So the total estimated crash reduction for 2017, the first year of the rule, is 11 fewer fatal crashes (11 = 7 + 4), 128 fewer injury crashes (128 = 81 + 47), and 220 fewer tow-away crashes (220 = 139 + 81). The same process applies for all subsequent years. The number of carriers—and thus crashes—is increased by 2.17 percent from the previous year; these crashes are allocated as described above to those carriers put permanently OOS and those that opted to make the necessary changes, and then the improvement rates of 52.8 percent and 17.4 percent are applied to the respective groups.

The average cost of a fatal crash is estimated at $11,019,000 (in 2013 dollars), $10,885,000 of which is the monetized value of a statistical life (VSL) component. The remaining $134,000 is comprised of medical costs, emergency services, property damages, lost productivity from roadway congestion, and environmental costs. It is assumed that the VSL increases at a rate of 1.18 percent annually.[99] By 2017 the VSL component (in 2013 dollars) increases from $10,885,000 to $11,408,000 ($11,408,000 = $10,885,000 × (1.01184)). Together with the remaining $134,000 in costs, the cost of a fatal crash in 2017 is estimated to be $11,542,000 in 2013 dollars ($11,542,000 = $11,408,000 + $134,000).

The average cost of an injury crash is estimated at $453,000 (in 2013 dollars), $393,000 of which is the monetized VSL component. The remaining $60,000 is comprised of medical costs, emergency services, property damages, lost productivity from roadway congestion, and environmental costs. By 2017, the VSL component (in 2013 dollars) increases from $393,000 to $412,000 ($412,000 = $393,000 × (1.01184)). Together with the remaining $60,000 in costs, the cost of a fatal crash in 2017 is estimated to be $472,000 in 2013 dollars ($472,000 = $412,000 + $60,000).

The average cost of a tow-away crash is estimated at $72,000 (in 2013 dollars), $50,000 of which is the monetized VSL component. The remaining $22,000 is comprised of medical costs, property damages, lost productivity from roadway congestion, and environmental costs. By 2017, the monetized VSL component (in 2013 dollars) increases from $50,000 to $52,000 ($52,000 = $50,000 × (1.01184)). Together with the remaining $22,000 in costs, the cost of a fatal crash in 2017 is estimated to be $74,000 in 2013 dollars ($74,000 = $52,000 + $22,000).

The same process applies for all subsequent years. The monetized VSL component is increased by 1.18 percent from the previous year, and added to the $134,000 other costs of a fatal crash, resulting in that year's benefits in 2013 dollars.

Given the cost of a fatal crash of $11,542,000, an injury crash of $472,000, and a tow-away crash of $74,000 in 2017 (in 2013 dollars), and given the 11 fewer fatal, 128 fewer injury, and 220 fewer tow-away crashes estimated in 2017, the benefits of the rule for Option 2 that occur in 2017 total $203.7 million. The fatal crash component is $127 .0 million ($126,962,000 = $11,542,000 × 11), the injury crash component is $60.4 million ($60,416,000 = $472,000 × 128), and the tow-away crash component is $16.3 million ($16,280,000 = $74,000 × 220). The same process applies for all subsequent years. Table 20 below summarizes the benefits for the first year of the rule for preferred Option 2.

Table 20—Annual Benefit (in 2017) to Crash Reduction From Switch From Current to Proposed SFD for Option 2 (96/99)

Net gain to new SFDNet crash reductionCost per crashBenefit (millions)
Fatal Crashes11$11,542,000$127.0
Injury Crashes128472,00060.4
Tow-Away Crashes22074,00013.3
Start Printed Page 3595
Benefit of the Switch (Millions)203.7

For preferred Option 2, ten-year projected benefits are $1.692 billion discounted at seven percent and $1.998 billion discounted at three percent. The rule is proposed to have its first full year of implementation in 2017 based on this proposed rule in 2015 and a final rule in 2016. The costs of the rulemaking are those incurred by:

(1) Drivers who were employed by additional carriers ordered OOS who are now forced to seek new employment. Under preferred Option 2, 1,855 drivers are estimated to be adversely affected in this manner annually.

(2) The additional carriers identified as deficient under the proposed SFD that opt to improve performance, thereby incurring costs to achieve compliance.

(3) FMCSA, resulting from information system update and modification expenses (estimated as a one-time cost of $3.0 million incurred in year 2017 under both Option 1 and Option 2).

The carrier population is assumed to increase at an annual rate of 2.17 percent,[100] so that by 2017 the 1,824 identified carriers under Option 2 would increase to 1,988 (1,988 = 1,824 × (1.02174)). Assuming that 16.1 percent remain permanently OOS, 320 carriers (16.1 percent of 1,988) are affected. Given that carriers ordered OOS have on average 4.97 power units per carrier and 1.27 drivers per power unit, this results in 2,020 drivers (2,020 drivers = 1.27 drivers per power unit × 4.97 power units per carrier × 320 carriers) working for carriers ordered OOS that would be adversely affected in this manner.

Assuming that the real wages of drivers remain constant, then the total cost (in 2013 dollars) for each affected driver working for non-compliant carriers ordered OOS affected remains $4,003. So the total cost of the rule to drivers working for non-compliant carriers ordered OOS in 2017, the first year of the rule, is $8.1 million in 2013 dollars ($4,003 per driver × 2,020 drivers = $8,086,060, rounded to the nearest tenth of a million). Assuming the projected 2.17-percent carrier population increase continues through 2026 and real wages for drivers remain constant, then under Option 2, for the ten years from 2017 through 2026, the annualized costs of the rule to drivers working for non-compliant carriers ordered OOS at a seven percent discount rate are $9.4 million ($9.43 million, rounded to the nearest tenth of a million).

In addition to drivers, deficient carriers ordered OOS also adversely affect the shippers, brokers, and freight forwarders that use them regularly. These entities must spend time finding replacement carriers. However, turnover in the trucking and passenger carrying industries is significant enough that establishing new commercial relationships with motor carriers is a routine course of business for shippers, and many shippers have relationships with several carriers that compete for their business. The Agency does not perceive the marginal increase in carrier turnover that may result from this proposed rule as an impact that has quantifiable costs, nor as an impact for which the costs rise to a level of significance. Short-term decreases in the supply of shipping services resulting from deficient carriers being placed OOS may marginally increase the cost of shipping as other carriers adjust to meet the demand for services; however, this also incentivizes market entry by new carriers, thereby minimizing the potential for a shift in the real long-term equilibrium price for shipping services.

Deficient carriers identified by the current or proposed system are either ordered OOS or improve their safety performance to the point that they become compliant. Those carriers opting to improve to achieve compliance incur expenses in making these required improvements. This is true of carriers under both the current and proposed processes, so the additional expenditures related to the rule are those incurred by the additional carriers identified by the proposed process.

FMCSA recognizes that the social benefits of this proposed rule are associated with increased compliance with regulations that motor carriers are already expected to bear the compliance costs of. However, FMCSA notes that a carrier that may be newly identified as deficient under the proposed SFD may under the current SFD be given a conditional safety rating and allowed to continue operating. While the regulations that carriers are expected to be in compliance with are not changing under the proposed SFD, the differing identification methodology introduced with this proposed rule—such that a portion of borderline carriers under the current SFD would be identified as deficient under the proposed SFD—argues in favor of characterizing the costs borne by the newly-identified carriers in order to achieve compliance as new costs resulting from the proposed rule.

The Agency lacks data to evaluate the magnitude of the costs to those additional carriers that would be identified as deficient under the proposed SFD that seek to achieve compliance in order to remain in operation. There are many types of violations that can contribute to a carrier's identification as deficient and the range of compliance costs may differ—even across carriers with similar violations—due to factors such as: Size of carrier, experience and training levels of drivers, and experience of fleet maintenance personnel. For this reason, this cost element is noted as “not estimated” throughout summary-level tables in both this document and the supporting Regulatory Evaluation.

The Agency welcomes input on ways to estimate costs that would be borne by these newly-identified carriers to achieve compliance.

FMCSA has placed the complete Regulatory Evaluation for this proposal in the docket identified above. FMCSA seeks comment on any aspect of the Regulatory Evaluation for this proposal.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, Title II, 110 Stat. 857), when an agency issues a rulemaking proposal, the agency must “prepare and make available for public comment an initial regulatory flexibility analysis” that will Start Printed Page 3596“describe the impact of the proposed rule on small entities” (5 U.S.C. 603(a)). The initial regulatory flexibility analysis must cover the following six topics:

(1) A description of the reasons why action by the Agency is being considered.

Utilizing a crash and data driven new process, SFD is an improvement on the efficiency of the current method of determining carrier safety fitness. This rulemaking would (primarily) revise 49 CFR part 385, Safety Fitness Procedures (the Agency's current procedure) through a Notice of Proposed Rulemaking (NPRM; RIN 2126-AB11). It would make conforming amendments to 49 CFR parts 365, 386, 387, and 395.

(2) A succinct statement of the objectives of, and legal basis for, the proposed rule.

The proposed SFD process would improve the effectiveness of the current safety fitness determination. Its goal is a more performance-based method of determining the safety-fitness of motor carriers conducting commercial operations in interstate commerce. The efficiency gains mean more carrier contacts for the same expenditure of resources.

This NPRM is based primarily on the authority of 49 U.S.C. 31144, as amended. It also relies on the provisions of 49 U.S.C. 31133. Delegation of authority is conferred from the Secretary of Transportation to FMCSA under 49 CFR 1.87(f). A full description of the legal basis for this proposal is contained in the Legal Basis section of the NPRM.

(3) A description—and, where feasible, an estimate of the number—of small entities to which the proposed rule will apply.

Because FMCSA does not have direct revenue figures for all carriers, power units serve as a proxy to determine the carrier size that would qualify as a small business given the SBA's revenue threshold. In order to produce this estimate, it is necessary to determine the average revenue generated by a power unit.

With regard to truck power units, the Agency has estimated that a power unit produces about $186,000 in revenue annually (in 2013$). According to the SBA, motor carriers with annual revenue of $27.5 million are considered small businesses. This equates to 148 power units (147.77 = $27,500,000 ÷ $186,100/power unit). Thus, FMCSA considers motor carriers of property with 148 power units or fewer to be small businesses for purposes of this analysis. The Agency then looked at the number and percentage of property carriers with recent activity that would fall under that definition (of having 148 power units or fewer). The results show that over 99 percent of all interstate property carriers with recent activity have 148 power units or fewer. This amounts to about 493,000 carriers. Therefore, the overwhelming majority of interstate carriers of property would be considered small entities.

With regard to passenger-carrying vehicles, the Agency conducted a preliminary analysis to estimate the average number of power units for a small entity earning $15 million annually, based on an assumption that passenger carriers generate annual revenues of $161,000 per power unit. This estimate compares reasonably to the estimated average annual revenue per power unit for the trucking industry ($186,000). A lower estimate was used because passenger-carrying CMVs generally do not accumulate as many vehicle miles traveled (VMT) per year as trucks, and it is therefore assumed that they would generate less revenue per power unit on average. The analysis concluded that passenger carriers with 93 power units or fewer ($15,000,000 ÷ $161,000/power unit = 93.2 power units) would be considered small entities. The Agency then looked at the number and percentage of passenger carriers registered with FMCSA that have no more than 93 power units. The results show that about 98% of active passenger carriers have 93 power units or less, which is about 10,000 carriers. Therefore, the overwhelming majority of passenger carriers would be considered small entities to which this NPRM would apply.

Every active motor carrier would be, in essence, subject to this regulation because each has the chance of being identified under the new system if their performance warrants it (that is, if it is poor enough). Hence the rulemaking would apply to all of the estimated 503,000 motor carriers (493,000 property + 10,000 passenger) that are considered as small entities.

Under Option 2 (FMCSA's preferred option), there are an expected 1,530 additional carriers (1,824—294) identified under the proposed process that would opt to improve to the point of achieving compliance, and all should be considered small entities. However, while all 503,000 small entities are subject to the rule, about 1,824 carriers (this carrier count includes those carriers that went OOS in the year following final unfit determination under the proposed SFD) are expected to be impacted and an estimated 1,530 of them are projected to opt to improve after being identified under the proposed process.

Under Option 1, there are an expected 1,728 additional carriers (2,059—331) identified under the proposed process that would opt to improve to the point of achieving compliance (again, these counts include those carriers that went OOS in the year following final unfit determination under the proposed SFD), and all should be considered small entities. However, while all 503,000 small entities are subject to the rule, about 2,059 carriers are expected to be impacted and an estimated 1,728 of them are projected to opt to improve after being identified under the proposed process; therefore, the proposed rule requires no added burden of any type on compliant small entities.

(4) Reporting, record keeping, and other compliance requirements (for small entities) of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the types of professional skills necessary for preparation of the report or record.

The proposed rule would require no additional reporting, record keeping, or other compliance requirement burden on small entities.

(5) Duplicative, overlapping, or conflicting Federal rules.

The FMCSA is not aware of any other rules which duplicate, overlap, or conflict with the proposed action. FMCSA is the sole Federal Agency responsible for determining the safety fitness of motor carriers and operators—and that safety fitness is in fact the subject of this rule.

(6) A description of any significant alternatives to the proposed rule which minimize any significant impacts on small entities.

FMCSA is considering whether to phase the implementation of the final rule over a period of time, such as one or two years. A recent memorandum from the President directed Executive departments and agencies to consider ways of lessening the burden of compliance on small entities, such as a phased or delayed implementation, when a rule may have a significant economic impact on a substantial number of small entities.[101] Although FMCSA has reached a preliminary determination that this proposed rule would cover a substantial number of small entities, it will have a negligible economic impact. Nonetheless, the Agency would like comments from small entities on whether a phased implementation of the SFD proposal should be incorporated into the final Start Printed Page 3597rule. FMCSA also requests comments on this Initial Regulatory Flexibility Analysis and whether there would be significant economic impacts on substantial numbers of small entities.

Unfunded Mandates Reform Act of 1995

This rulemaking would not impose an unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995,[102] that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $155 million or more in any 1 year based on calendar year 2014 inflation adjustments.[103]

As discussed earlier in this proposed rule, the Agency estimates proposing unfit SFDs for 262 motor carriers per year based on inspection data, 2,674 motor carriers based on investigations, and 120 motor carriers based on a combination of inspection and investigation data. The rule is set to have its first full year of implementation in 2017 based on proposed rule in 2015 and a final rule in 2016. The costs of the rulemaking are those incurred by drivers who were employed by additional carriers ordered OOS who are now forced to seek new employment. The carrier population is assumed to increase at an annual rate of 2.17 percent as noted earlier, so that by 2017 the 1,824 identified carriers under Option 2 would increase to 1,988 (1,988 = 1,824 × (1.02174)). Assuming that 16.1 percent remain permanently OOS, 320 carriers (16.1 percent of 1,988) are affected. Given that carriers ordered OOS have on average 4.97 power units per carrier and 1.27 drivers per power unit, this results in 2,020 drivers (2,020 drivers = 1.27 drivers per power unit × 4.97 power units per carrier × 320 carriers) working for carriers ordered OOS that would be adversely affected in this manner.

Assuming that the real wages of drivers remain constant, then the total cost (in 2013 dollars) for each driver affected remains $4,003. So the total cost of the rule in 2017 to drivers working for non-compliant carriers ordered OOS the first year of the rule, is $8.1 million in 2013 dollars ($4,003 per driver × 2,020 drivers = $8,086,060, rounded to the nearest tenth of a million). Assuming the projected 2.17-percent carrier population increase continues through 2026 and real wages for drivers remain constant, then under Option 2, for the ten years from 2017 through 2026, the annualized costs of the rule to drivers working for non-compliant carriers ordered OOS at a seven percent discount rate are $9.4 million ($9.43 million, rounded to the nearest tenth of a million). Thus, expenditures by State, local, and tribal governments, and the private sector, of $9.4 million annually do not rise to the threshold of $155 million or more in any 1 year for the Unfunded Mandates Reform Act of 1995. Comments are welcome on this analysis.

Executive Order 12988 (Civil Justice Reform)

This proposed action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Executive Order 12630 (Taking of Private Property)

This proposed rulemaking would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

Executive Order 13132 (Federalism)

Executive Order 13132 requires FMCSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under the Executive Order, FMCSA may construe a Federal statute to preempt State law only where, among other things, the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.

This proposed action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and it has been determined that this NPRM does have Federalism implications or a substantial direct effect on the States. Under this rule, the States may choose to participate in MCSAP grants to conduct inspections and motor carrier investigations that will be the basis for FMCSA's SFDs. FMCSA has statutory authority to adopt a requirement that States receiving grants from MCSAP enforce orders issued by FMCSA related to CMV safety and HM transportation safety, to include placing an unfit motor carrier's driver and CMV OOS after FMCSA has determined a motor carrier is unfit.[104] FMCSA will develop the detailed procedures for the program in consultation with the States.

FMCSA notes that it has communicated with the States on the proposed requirements for States. Most recently, FMCSA sent a letter to the States through the National Governors' Association advising them this proposed rule would be published this year proposing requirements for the States to make changes to enforce orders issued by FMCSA related to CMV safety and hazardous materials transportation safety. The letter briefly summarized section 49 U.S.C. 31102, and asked them to participate in this NPRM's comment period.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 [105] requires that FMCSA consider the impact of paperwork and other information collection burdens imposed by the Agency. The Paperwork Reduction Act does not apply to collections of information during the conduct of administrative actions or investigations involving an agency against specific individuals or entities, unless the collection of information is to conduct a general investigation undertaken with reference to a category of individuals or entities such as a class of licensees or an entire industry.[106] This exception applies both before and after formal charges or administrative action is taken.[107]

FMCSA is not proposing to conduct general investigations on a category of individuals or entities. The collections of information in this SFD proposal would be against specific entities on which the Agency has opened a case file. Such a case file would be opened when a motor carrier is charged with one or more applicable violations of Federal, State, or local laws or regulations that occurred while Start Printed Page 3598operating CMVs on the highways in the United States.

FMCSA has therefore determined that there are no new information collection requirements associated with this proposed rule requiring approval under the Paperwork Reduction Act of 1995.

National Environmental Policy Act

The Agency analyzed this proposed rule for the purpose of the National Environmental Policy Act of 1969 (NEPA) [108] and our environmental procedures Order 5610.1, published March 1, 2004 (69 FR 9680). The Agency has performed an Environmental Assessment on this action. The analysis of the potential impacts of this proposed rule indicates that, if crash reductions estimated to occur from the implementation of the requirements in the final rule actually occur, there would be a small net benefit to the environment and public health and safety. Projected benefits result mainly from the reduction in air emissions and hazardous materials releases occurring from CMV crashes, from the reduction of lives lost and injuries prevented, and from the reduction of solid waste generated in a CMV crash. FMCSA has preliminarily determined that the environmental impacts from the proposed action are not significant enough to warrant preparation of an environmental impact statement.

FMCSA has also analyzed this proposed rule under the Clean Air Act, as amended, section 176(c),[109] and implementing regulations promulgated by the Environmental Protection Agency. FMCSA performed a conformity analysis according to the procedures outlined in appendix 14 of FMCSA Order 5610.C. This rulemaking would not result in any emissions increase, nor would it have any potential to result in emissions above the general conformity rule's de minimis emission threshold levels. Moreover, it is reasonably foreseeable that the proposed rule change would not increase total CMV mileage, change the routing of CMVs, change how CMVs operate, or change the CMV fleet-mix of motor carriers.

Executive Order 13211 (Energy Effects)

FMCSA has analyzed this proposed action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use. We have determined preliminarily that it would not be a “significant energy action” under that Executive Order, because it would not be economically significant and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 12898 (Environmental Justice)

FMCSA evaluated the environmental effects of this NPRM in accordance with Executive Order 12898 and determined that there are neither environmental justice issues associated with its provisions nor any collective environmental impact resulting from its promulgation. Environmental justice issues would be raised if there were “disproportionate” and “high and adverse impact” on minority or low-income populations. None of the alternatives analyzed in the Agency's deliberations would result in high and adverse environmental impacts on these groups.

Executive Order 13045 (Protection of Children)

FMCSA has analyzed this proposal under Executive Order 13045, titled “Protection of Children from Environmental Health Risks and Safety Risks.” The Agency does not believe this Executive Order is implicated, because the proposed rule would neither be economically significant, nor would it pose an environmental risk to health or safety that may disproportionately affect children.

Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments)

FMCSA analyzed this rulemaking in accordance with the principles and criteria in Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. This rulemaking does not significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs on tribal governments. Thus, the funding and consultation requirements of Executive Order 13175 do not apply and no tribal summary impact statement is required.

Privacy Impact

Rulemakings may affect how personally identifiable information (PII) about individuals is kept and shared. FMCSA ownership of the information is not relevant in determining the need to ensure that FMCSA regulations do not impose, or require or encourage others to impose, privacy intrusions that are not reasonably necessary to achieve the purpose of the regulations.

Section 522 of the Transportation, Treasury, Independent Agencies and General Government Appropriations Act, 2005,[110] instructs FMCSA to conduct a privacy impact assessment (PIA) of proposed rules that will affect the privacy of individuals. The PIA should identify potential threats relating to the collection, handling, use, sharing, and security of the data; the measures identified to mitigate these threats, and the rationale for the final decisions made for the rulemaking as a result of conducting the PIA.

In order to ensure the Agency's data handling conforms to applicable legal, regulatory, and policy requirements regarding privacy, FMCSA analyzed this proposed rulemaking to determine whether it would impact the way information is handled. It analyzed the risks and effects the rulemaking might have on collecting, maintaining, and sharing PII and examined and evaluated protections and alternative processes for handling information to mitigate potential privacy risks. PII is any information that permits the identity of an individual to whom the information applies to be reasonably inferred by either direct or indirect means, singly or in combination with other data. Examples of PII include but are not limited to physical and online contact information, Social Security number, and driver's license number.

The Agency does not believe this proposed rulemaking would change the Agency's data collection, handling, use, sharing, and security of PII data. The current PII data handling requirements conform to applicable legal, regulatory, and policy requirements regarding privacy. The proposal would not have any effects on collecting, maintaining, and sharing PII, but would continue the Agency's protections and processes for handling PII to mitigate potential privacy risks.

Waiver of Advance Notice of Proposed Rulemaking

FMCSA is aware of the requirements in section 5202 of the recently enacted Fixing America's Surface Transportation Act, Public Law 114-94 (FAST Act) (Dec. 4, 2015) (adding 49 U.S.C. 31136(g)). FMCSA finds, however, that publication of an advance notice of proposed rulemaking is unnecessary and contrary to the public interest in this case. The rule proposed today has been under development at FMCSA for over 10 years, and it represents a public investment of thousands of Federal employee and contractor hours and Start Printed Page 3599millions of taxpayer dollars. There have also been several public listening sessions conducted during its development, which served the important purpose of soliciting early public comment to inform this NPRM which would have been one of the goals of an ANPRM. With the benefit of this public outreach and internal research, the decision whether to devote agency resources to developing a proposed rule, which is at the core of any ANPRM, has thus already been made. A full opportunity for public participation in this rulemaking is provided and encouraged through the public comment process, including the opportunity to submit reply comments.

XI. Public Participation and Request for Comments

FMCSA encourages you to participate in this rulemaking by submitting comments, reply comments, and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you provide.

A. Submitting Comments

Initial comments may address any issue raised in the NPRM and the background documents in the docket (e.g., Regulatory Evaluation, studies). Initial comments will be made available promptly online on http://www.regulations.gov and for public inspection in room W12-140, DOT Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. In order to allow sufficient opportunity for interested parties to prepare and submit any reply comments, late-filed initial comments will not be considered. Reply comments must address only matters raised in initial comments and must not be used to present new arguments, contentions, or factual material that is not responsive to the initial comments.

If you submit a comment or a reply comment, please include the docket number for this rulemaking (FMCSA-2015-0001), indicate the specific section of this document to which each comment or reply comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments, reply comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.

To submit your comment or reply comment online, go to http://www.regulations.gov and insert “FMCSA-2015-0001” in the “Search” box, and then click the “Search” button to the right of the white box. Click on the top “Comment Now” box which appears next to the document. Fill in your contact information, as desired and your comment or reply comment, uploading documents if appropriate. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments or reply comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.

FMCSA will consider all comments, reply comments and material received during the comment period and may change this proposed rule based on your comments.

B. Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov and insert “FMCSA-2015-0001” in the “Search” box and then click on “Search.” Click on the “Open Docket Folder” link and all the information for the document, and the list of comments will appear with a link to each one. Click on the comment you would like to read. If you do not have access to the Internet, you may view the docket online by visiting the Docket Services in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

C. Privacy Act

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/​privacy.

Start List of Subjects

List of Subjects

49 CFR Part 350

  • Grant programs-transportation
  • Highway safety
  • Motor carriers
  • Motor vehicle safety
  • Reporting and recordkeeping requirements

49 CFR Part 365

  • Administrative practice and procedure
  • Brokers
  • Buses
  • Freight forwarders
  • Mexico
  • Motor carriers
  • Moving of household goods

49 CFR Part 385

  • Administrative practice and procedure
  • Highway safety
  • Mexico
  • Motor carriers
  • Motor vehicle safety
  • Reporting and recordkeeping requirements

49 CFR Part 386

  • Administrative practice and procedure
  • Brokers
  • Freight forwarders
  • Hazardous materials transportation
  • Highway safety
  • Motor carriers
  • Motor vehicle safety
  • Penalties

49 CFR Part 387

  • Buses
  • Freight
  • Freight forwarders
  • Hazardous materials transportation
  • Highway safety
  • Insurance
  • Intergovernmental relations
  • Motor carriers
  • Motor vehicle safety
  • Moving of household goods
  • Penalties
  • Reporting and recordkeeping requirements
  • Surety bonds

49 CFR Part 395

  • Highway safety
  • Motor carriers
  • Reporting and recordkeeping requirements
End List of Subjects

In consideration of the foregoing, FMCSA proposes to amend title 49, Code of Federal Regulations, chapter III, as follows:

Start Part

PART 350—COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM

End Part Start Amendment Part

1. The authority citation for part 350 continues to read as follows:

End Amendment Part Start Authority

Authority: 49 U.S.C. 13902, 31101-31104, 31108, 31136, 31140-31141, 31161, 31310-31311, 31502; and 49 CFR 1.87.

End Authority Start Amendment Part

2. Amend § 350.201 by revising paragraph (a) to read as follows:

End Amendment Part
What conditions must a State meet to qualify for Basic Program Funds?
* * * * *

(a) Assume responsibility for improving motor carrier safety by enforcing FMCSA orders on all commercial motor vehicle safety and hazardous materials transportation safety, and by adopting and enforcing State safety laws and regulations that are compatible with the FMCSRs (49 CFR parts 390 through 397) and the HMRs (49 CFR parts 107 (subparts F and G only), 171 through 173, 177, 178, and 180), except as may be determined by the Administrator to be inapplicable to a State enforcement program.

* * * * *
Start Part Start Printed Page 3600

PART 365—RULES GOVERNING APPLICATIONS FOR OPERATING AUTHORITY

End Part Start Amendment Part

3. The authority citation for part 365 continues to read as follows:

End Amendment Part Start Authority

Authority: 5 U.S.C. 553 and 559; 49 U.S.C. 13101, 13301, 13901-13906, 14708, 31138, and 31144; and 49 CFR 1.87.

End Authority Start Amendment Part

4. Amend § 365.109 by revising paragraph (a)(3) to read as follows:

End Amendment Part
FMCSA review of the application.

(a) * * *

(3) All motor carrier applications will be reviewed for consistency with FMCSA's safety fitness determination criteria. Applicants with unfit safety fitness determinations from FMCSA will have their applications rejected.

* * * * *
Start Amendment Part

5. Amend § 365.507 by revising paragraph (f) to read as follows:

End Amendment Part
FMCSA action on the application.
* * * * *

(f) FMCSA may grant standard long-haul operating authority to a Mexico-domiciled carrier no earlier than 18 months after the date that provisional operating authority is granted and only after a comprehensive investigation or on-road safety data determines that the Mexico-domiciled carrier is not “unfit” as set out in subpart B of part 385 of this chapter and the Mexico-domiciled carrier is not proposed “unfit” based on the Agency's safety fitness determination criteria.

Start Part

PART 385—SAFETY FITNESS PROCEDURES

End Part Start Amendment Part

6. The authority citation for part 385 is revised to read as follows:

End Amendment Part Start Authority

Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5113, 13901-13905, 31133, 31134, 31135, 31136, 31137(a), 31144, 31148, and 31502; Sec. 113(a), Pub. L. 103-311, 108 Stat. 1676; Sec. 408, Pub. L. 104-88, 109 Stat. 958 (49 U.S.C. 31136 note); Sec. 350, Pub. L. 107-87, 115 Stat. 864 (49 U.S.C. 13902 note); and 49 CFR 1.87.

End Authority Start Amendment Part

7. Amend § 385.1 by revising paragraph (a) to read as follows:

End Amendment Part
Purpose and scope.

(a) This part establishes FMCSA's procedures to determine the safety fitness of motor carriers, to direct motor carriers to take corrective action when required, and to prohibit motor carriers determined to be unfit from operating a CMV.

* * * * *
Start Amendment Part

8. Amend § 385.3 as follows:

End Amendment Part Start Amendment Part

a. Add an undesignated introductory paragraph;

End Amendment Part Start Amendment Part

b. Remove the definitions of “Preventable accident,” “Reviews,” and “Safety ratings”; and

End Amendment Part Start Amendment Part

c. Add the definitions of “Acute regulation,” “Assistant Administrator,” “Behavior Analysis and Safety Improvement Category,” “Compliance review,” “Comprehensive investigation,” “Critical regulation,” “Failure standard,” “Field Administrator,” “Inspection,” “Intervention,” “Investigation,” “Measure,” “Operating authority registration,” “Performance standard,” “Preventable crash,” “Registration,” “Roadability review,” “Safety audit,” “Safety event group,” “Safety management controls,” “Safety registration,” and “Unfit,” in alphabetical order.

End Amendment Part

The additions read as follows:

Definitions and acronyms.

The definitions in part 390 of this chapter apply to this part, except where otherwise specifically noted.

Acute regulation means an applicable safety regulation where noncompliance with it, discovered during an investigation, is so serious as to require immediate corrective action, even if the motor carrier's safety record is not otherwise deficient.

* * * * *

Assistant Administrator means the Assistant Administrator of the Federal Motor Carrier Safety Administration. The Assistant Administrator is the Chief Safety Officer of the Agency pursuant to 49 U.S.C. 113(e). Decisions of the Assistant Administrator in administrative review proceedings under this part are administratively final.

Behavior Analysis and Safety Improvement Category (BASIC) means a category into which violations are sorted to identify compliance patterns. The seven BASICs are:

(1) Unsafe driving;

(2) Driver fitness;

(3) Vehicle maintenance;

(4) Hours of service (HOS) compliance;

(5) Hazardous materials (HM);

(6) Controlled substance/alcohol; and

(7) Crash indicator.

* * * * *

Compliance review means a comprehensive or focused review of a motor carrier's operations by an investigator who is certified to perform the review under the provisions of subpart C of this part. It is used to determine if adequate safety management controls are in use.

Comprehensive investigation. See Compliance review.

Critical regulation means an applicable safety regulation is related to management or operational systems controls. A pattern of noncompliance with a critical regulation must be found to affect a safety fitness determination. The number of violations required to meet the threshold for a pattern is equal to at least 10 percent of those records sampled and more than one violation must be found.

Failure standard means an absolute measure that if met or exceeded, based on a motor carrier's own safety performance alone, will cause a BASIC to be failed.

Field Administrator means a position in an FMCSA Service Center who has been delegated authority to decide administrative reviews under this part on behalf of FMCSA. Field Administrator includes the term Regional Field Administrator. The geographical boundaries and mailing addresses of each of the four Service Centers are specified in § 390.27 of this chapter.

* * * * *

Inspection means an examination of a commercial motor vehicle and/or its driver by an inspector who is certified to perform the examination under the provisions of subpart C of this part.

Intervention means one of several different means of contacting a motor carrier to advise of observed safety deficiencies. This may include, but is not limited to, warning letters, investigations, Notices of Violation, or the issuance of a Notice of Claim.

Investigation means an examination of a motor carrier's operations to determine compliance with the FMCSRs, Hazardous Materials Regulations (HMRs), or other applicable regulations and statutes by an investigator who is certified to perform the review under the provisions of subpart C of this part.

Measure means an absolute quantifier of an individual motor carrier's safety performance that is derived from that carrier's time-weighted and severity-weighted violations cited during an inspection, divided by the number of inspections or number of vehicles depending on the BASIC.

* * * * *

Operating authority registration means the registration that a for-hire, non-exempt motor carrier is required to obtain under 49 U.S.C. 13901 and 13902.

Performance Standard means an absolute measure, based on a motor carrier's safety performance alone.

* * * * *
Start Printed Page 3601

Preventable crash on the part of a motor carrier means that if a driver, who exercises normal judgment and foresight could have foreseen the possibility of the crash that in fact occurred, and avoided it by taking steps within his or her control which would not have risked causing another kind of mishap, the crash was preventable. The Agency procedures make use of guidance for making preventability determinations as set out in FMCSA's A Motor Carrier's Guide to Improving Highway Safety, FMCSA-ESO-08-003, December 2009 (available at http://www.fmcsa.dot.gov/​safety-security/​eta/​index.htm).

Registration includes operating authority registration and/or safety registration.

Roadability review means an onsite examination of the intermodal equipment provider's compliance with the applicable FMCSRs by an investigator who is certified to perform the review under the provisions of subpart C of this part.

Safety audit means an examination of a new entrant motor carrier's operations to gather critical safety data needed to evaluate the carrier's safety performance and basic safety management controls, and to assess the carrier's compliance with safety and operational requirements. Safety audits do not result in a safety fitness determination. Safety audits must be performed by an auditor who is certified to perform the review under the provisions of subpart C of this part.

Safety event group. In the BASICs that are assessed with on road safety data except “Unsafe Driving,” means a grouping of motor carriers based on the number of inspections in a 24 month period. In the Unsafe Driving BASIC, means a grouping of motor carriers based on the number of inspections with Unsafe Driving violations in a 24 month period. Safety event groups are used to determine the applicable safety fitness determination failure standard within a BASIC for a specific motor carrier.

Safety management controls means the systems, policies, programs, practices, processes, and procedures used by a motor carrier to ensure compliance with applicable Federal Motor Carrier Safety Regulations and Hazardous Materials Regulations.

Safety registration means the registration an employer or person subject to FMCSA's safety jurisdiction is required to obtain under 49 U.S.C. 31134.

Unfit means a safety fitness determination by FMCSA that a motor carrier does not meet the safety fitness standard in § 385.5 and may not operate a commercial motor vehicle in interstate or intrastate commerce.

Start Amendment Part

9. Revise § 385.5 to read as follows:

End Amendment Part
Safety fitness standard.

A motor carrier must meet the safety fitness standard set forth in this section. Intrastate motor carriers subject to the hazardous materials safety permit requirements of subpart E of this part must meet the equivalent State requirements. To avoid a safety fitness determination of unfit, the motor carrier must demonstrate it has adequate safety management controls in place, which function effectively to ensure acceptable compliance with applicable safety requirements to reduce the risk associated with:

(a) Controlled substances and alcohol use and testing requirement violations (parts 40 and 382 of this title);

(b) Commercial driver's license standard violations (part 383 of this chapter);

(c) Inadequate levels of financial responsibility (part 387 of this chapter);

(d) The use of unqualified drivers (part 391 of this chapter);

(e) Improper use and driving of motor vehicles (part 392 of this chapter);

(f) Unsafe vehicles operating on the highways (part 393 of this chapter);

(g) Failure to maintain crash registers and copies of crash reports (part 390 of this chapter);

(h) Non-compliance with the Agency's Hours of Service Regulations (part 395 of this chapter);

(i) Inadequate inspection, repair, and maintenance of vehicles (part 396 of this chapter);

(j) Transportation of hazardous materials, driving and parking rule violations (part 397 of this chapter);

(k) Violation of hazardous materials regulations (parts 170 through 180 of this title); and

(l) Motor vehicle crashes, as defined in § 390.5 of this chapter, and hazardous materials incidents, as defined in §§ 171.15 and 171.16 of this title.

Start Amendment Part

10. Revise § 385.7 to read as follows:

End Amendment Part
Factors to be considered in making a safety fitness determination.

The factors to be considered during a safety fitness determination may include information from operations in the United States, Canada, and Mexico from driver/vehicle inspections, an examination of the carrier's records during investigations, or crash data. The factors may include any or all of the following:

(a) Adequacy of safety management controls. Safety management controls may be considered inadequate if they are found to be substantially below the norm for similar carriers. Violations, crashes, or incidents substantially above the norm for similar carriers will be strong evidence that management controls are either inadequate or not functioning properly.

(b) Frequency and severity of regulatory violations identified during investigations and whether similar violations have increased or decreased over time.

(c) Frequency and severity of regulatory violations identified during roadside inspections of motor carrier operations in commerce and, if the motor carrier operates in the United States, of operations in Canada and Mexico.

(d) Number and frequency of out-of-service violations of motor carrier operations in commerce and, if the motor carrier operates in the United States, of operations in Canada and Mexico.

(e) For motor carrier operations in commerce and, if the motor carrier operates in the United States, in Canada and Mexico: Frequency of crashes; hazardous materials incidents; crash rate per million miles; indicators of preventable crashes; and whether such crashes, hazardous materials incidents, and preventable crash indicators have increased or declined over time.

(f) Number and severity of violations of CMV, hazardous material and motor carrier safety rules, regulations, standards, and orders that are both issued by a State, Canada, or Mexico and compatible with Federal rules, regulations, standards, and orders.

(g) Admissibility of inspection data. Inspection reports and summaries of inspection data maintained in any existing or future FMCSA data systems, such as the Motor Carrier Safety Measurement System and the Motor Carrier Management Information System, are self-authenticating and are admissible as evidence that violations identified in the inspection report or data system occurred.

Start Amendment Part

11. Add § 385.8 to read as follows:

End Amendment Part
Service and filing of documents.

(a) In general. Unless the provisions of this part provide otherwise, each of the following papers must be served as described in this part.

(b) Service; how made. Unless otherwise provided in this part, a paper is served by:

(1) Handing it to the person;

(2) Leaving it at the person's office with a clerk or other person in charge or, if not one is in charge, in a conspicuous place in the office; or

(3) If the person has no office or the office is closed, at the person's dwelling Start Printed Page 3602or usual place of abode with someone over the age of 18 who resides there;

(4) Mailing it using the United States Postal Service or a commercial delivery service, in which case service is complete upon mailing;

(5) Sending it by electronic means if the person consented in writing and the service is effected in the manner identified in the consent, in which case service is complete upon transmission but is not effective if the serving party learns that it did not reach the person to be served; or

(6) Delivering it by any other means that the person consented to in writing, in which case service is complete when the person making service delivers it to the agent designated to make delivery.

(c) Presumption of service. A properly addressed paper served in accordance with this part which is returned as unclaimed or refused is presumed to have been served. A paper is presumed to have been served in accordance with this part if the Agency serves a document on a motor carrier at the address provided by the carrier to the Agency in any filing required to be made by FMCSA's statutes or regulations.

(d) Certificate of service. All papers filed after the notice of proposed unfit safety fitness determination must contain a certificate of service showing the date and manner of service and be signed by the person making service.

(e) Filing of documents. Every paper served in proceedings under § 385.15 must be filed with U.S. DOT Docket Services in accordance with this part.

(f) Electronic signatures and filings. The Agency may permit electronic signature and filing by electronic means. If permitted by the Agency, a paper filed electronically is considered a written paper under this part.

Start Amendment Part

12. Revise § 385.9 to read as follows:

End Amendment Part
Determining a carrier's safety fitness.

(a) FMCSA, using the factors prescribed in § 385.7 as computed under the safety fitness determination methodology set forth in Appendix B of this part and based upon data received by FMCSA through the date of the proposed determination, shall determine whether the motor carrier ensures compliance with the regulations set forth in § 385.5 and shall assign a safety fitness determination accordingly.

(b) Except as noted in §§ 385.16 and 385.17, a motor carrier's safety fitness determination will be based on data received by FMCSA through the date of the proposed determination under § 385.11(c).

(c) If the proposed determination becomes final under this part, it shall remain in effect during the period of administrative review under § 385.15 or § 385.16, or any review of a request under § 385.18.

(d) Unless otherwise specifically provided in this part, a safety fitness determination based upon an investigation of a carrier's safety management controls in accordance with the standard set forth in § 385.5(a) will be issued as soon as practicable.

Start Amendment Part

13. Revise § 385.11 to read as follows:

End Amendment Part
Notification of unfit safety fitness determination.

(a) FMCSA will provide a motor carrier with written notice of a proposed unfit safety fitness determination as soon as practicable. The notice will take the form of a letter issued from FMCSA and will include a list of FMCSR and HMR safety and compliance deficiencies that resulted in the unfit safety fitness determination which the motor carrier must correct.

(1) The Agency may serve the written notice on the motor carrier by any of the means set forth in § 385.8 that are reasonably calculated to provide notice.

(2) The notice may be made upon:

(i) An individual officer, director, agent, or any representative identified by the motor carrier on filings submitted to the Agency;

(ii) A resident agent appointed in accordance with the laws of the State of formation; or

(iii) An agent designated for service of process as a condition of operating authority registration.

(b) When FMCSA issues a notice of proposed unfit safety fitness determination, that notice becomes the final safety fitness determination after the following time periods:

(1) For motor carriers transporting hazardous materials in quantities requiring placarding or transporting passengers by CMV—45 days after the date of the notice.

(2) For all other motor carriers operating CMVs—60 days after the date of the notice.

(c) A notice of a proposed unfit safety fitness determination advises the motor carrier that FMCSA has made a preliminary determination that the motor carrier is unfit to continue operating in commerce and that the prohibitions in § 385.13 will be imposed after 45 or 60 days, as provided in § 385.13(a), if necessary safety improvements are not made.

(d) A motor carrier may request FMCSA to perform an administrative review of a proposed unfit safety fitness determination. The process and the time limits are described in § 385.15.

(e) A motor carrier may request FMCSA to perform a data sufficiency review of a proposed unfit safety fitness determination based upon a claim of unconsidered inspection data. The process and the time limits are described in § 385.16.

(f) A motor carrier may request a change to a proposed unfit safety fitness determination when it can demonstrate it has taken action to correct its safety deficiencies that resulted in the unfit safety fitness determination and has executed a compliance agreement with FMCSA. The process and the time limits are described in § 385.17.

(g) When a proposed unfit safety fitness determination becomes final, a motor carrier that has been issued a final unfit safety fitness determination may apply for safety registration and operating authority registration when it can demonstrate it has taken action to correct its deficiencies that resulted in the unfit safety fitness determination based on its corrective action plan. The process and the time limits are described in § 385.18.

Start Amendment Part

14. Add § 385.12 to read as follows:

End Amendment Part
Revocation procedures for unfit safety fitness determination.

A proposed safety fitness determination of “unfit” under § 385.11 serves as notice to the motor carrier that its safety and, if applicable, operating authority registrations will be revoked within 45 or 60 days, as applicable, if it does not receive approval to operate under a compliance agreement under § 385.17 or the safety fitness determination is not changed as a result of an administrative review proceeding under § 385.15 or § 385.16. The revocation will be effective on or after the date the unfit determination becomes final, in accordance with a further order issued under the provisions of either § 385.13(e) or § 385.17(f).

Start Amendment Part

15. Revise § 385.13 to read as follows:

End Amendment Part
Unfit motor carriers: prohibition on transportation; ineligibility for Federal contracts.

(a) Generally, a motor carrier operating in interstate commerce that has been determined to be unfit is prohibited from operating a CMV in interstate or intrastate commerce. Information about motor carriers, including their most current safety fitness determination, is available from FMCSA on the Internet at http://[FMCSA will provide the Web site in the final rule].

(1) Motor carriers transporting hazardous materials in quantities requiring placarding and motor carriers Start Printed Page 3603transporting passengers in a CMV are prohibited from operating a CMV in motor carrier operations in interstate or intrastate commerce beginning on the 46th day after the date FMCSA serves the notice of proposed unfit safety fitness determination.

(2) All other motor carriers with an unfit safety fitness determination are prohibited from operating a CMV in motor carrier operations in interstate or intrastate commerce beginning on the 61st day after the date FMCSA serves the notice of proposed unfit safety fitness determination.

(b) A Federal agency must not use a motor carrier if that carrier holds an unfit safety fitness determination.

(c) [Reserved]

(d) Consequences. (1) If a proposed unfit safety fitness determination becomes final, the motor carrier is prohibited from operating in commerce without further order. The prohibition applies to both the motor carrier's operations in interstate commerce and its operations affecting interstate commerce.

(2) If a motor carrier's intrastate operations are declared out-of-service by a State, FMCSA must issue an order placing out-of-service the carrier's operations in interstate commerce. The following conditions apply:

(i) The State that issued the intrastate out-of-service order participates in the Motor Carrier Safety Assistance Program and uses the FMCSA safety fitness determination methodology set forth in appendix B of this part or an equivalent methodology approved by FMCSA; and

(ii) The motor carrier has its principal place of business in the State that issued the out-of-service order.

(iii) The order prohibiting the motor carrier from operating a CMV in interstate commerce shall remain in effect until the State determines that the carrier is not unfit.

(3) Any motor carrier that operates CMVs in violation of this section is subject to the penalty provisions of 49 U.S.C. 521(b) and appendix B to part 386 of the FMCSRs.

(e) Revocation of registration. FMCSA will issue an order revoking the safety and, if applicable, operating authority registrations of a motor carrier effective on the date a proposed unfit safety fitness determination becomes final.

Start Amendment Part

15. Revise § 385.15 to read as follows:

End Amendment Part
Administrative review based on material error.

(a) Request for review. A motor carrier may ask the Assistant Administrator to review a proposed unfit safety fitness determination based on an allegation of material error by serving a written petition for administrative review under this section. A request for administrative review must demonstrate material error in the assignment of the motor carrier's proposed unfit safety fitness determination.

(b) Contents of petition for administrative review. The petition for administrative review must be in writing in English and include as attachments:

(1) A copy of the written notice of proposed safety fitness determination served on the motor carrier, and the investigation report or any other report that formed the basis of the safety fitness determination.

(2) An explanation of the material error(s) the motor carrier believes FMCSA committed in assigning the safety fitness determination;

(3) A list of all factual and procedural issues in dispute and any information or documents that support the motor carrier's argument;

(4) A copy of any pending request for unconsidered inspection data filed under § 385.16.

(c) Service and time for filing petition for administrative review—(1) Service and filing required. (i) Within 15 days after service of the notice or proposed unfit safety fitness determination, the motor carrier must serve the original petition for review on the Field Administrator for the Service Center identified in the notice of proposed unfit safety fitness determination;

(ii) The motor carrier must also serve a copy of the petition on FMCSA's Adjudications Counsel, by mail, to 1200 New Jersey Ave. SE., Washington, DC 20590-0001; or by fax to 202-366-3602; or by electronic mail to FMCSA.Adjudication@dot.gov. Adjudications counsel consents to electronic service of documents in proceedings under this section;

(iii) Upon service, the motor carrier must also promptly file a copy of its petition for administrative review and any attachments, with the U.S. Department of Transportation Dockets, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

(2) Service of subsequent papers. All papers served after the petition for administrative review, must be served on the Field Administrator, or if represented, his attorney; the motor carrier, or if represented, his attorney; and Adjudications Counsel, and filed with Docket Services in the same manner as the petition for review.

(3) Certificate of service. All documents served in a proceeding under this section must contain a certificate of service showing the date and manner of service and be signed by the person effecting service.

(d) Field Administrator response to petition. The Field Administrator may, but is not required to, respond to the petition for administrative review. The Field Administrator's response, if any, should be served within 10 days of the Field Administrator's receipt of the petition for administrative review to ensure that the Assistant Administrator has time to consider the Field Administrator's position before a decision.

(e) Additional evidence. The Assistant Administrator may ask the motor carrier and/or the Field Administrator to submit additional information. If the motor carrier does not provide the information requested, the Assistant Administrator may dismiss its request for review.

(f) Written decision. The Assistant Administrator will issue a written decision regarding the petition for administrative review within:

(1) Thirty (30) days after Adjudications Counsel receives a petition for review from a hazardous materials or passenger motor carrier that has received a proposed or final unfit safety fitness determination.

(2) Forty-five (45) days after Adjudications Counsel receives a petition for review from any other motor carrier that has received a proposed or final unfit safety fitness determination.

(g) Standard of review. In requesting administrative review of a proposed safety fitness determination, the burden of proof is on the motor carrier to demonstrate that FMCSA committed material error in assigning the safety fitness determination. For purposes of this section, material error is a mistake or series of mistakes that resulted in an erroneous safety fitness determination or an erroneous determination that the carrier does not exercise the necessary basic safety management controls.

(h) Compliance and inspection data. The Assistant Administrator's decision is final and conclusive as to the compliance and inspection data underlying the safety fitness determination. The determination, with respect to previously reviewed data, is conclusive in any subsequent petition for administrative review. If a motor carrier submits a request for administrative review of a subsequent proposed unfit safety fitness determination that is, in part, based on compliance and inspection data reviewed during a previous request for administrative review, the determination, with respect to the previously reviewed data, is conclusive in any subsequent review.Start Printed Page 3604

(i) Final Agency action. The Assistant Administrator's decision constitutes final Agency action, unless reconsideration is requested under paragraph (j) of this section, in which case the decision on reconsideration is the final Agency action.

(j) Reconsideration. (1) Within 25 days following service of the Assistant Administrator's decision on a petition for administrative review under this section, the motor carrier and/or the Field Administrator may petition the Assistant Administrator for reconsideration of the decision. A petition for reconsideration does not stay the imposition of a final safety fitness determination unless a stay is requested and granted by the Assistant Administrator.

(2) A written petition for reconsideration, including any attachments, must be served and filed in the same manner as a petition for administrative review as specified in this section.

(3) Either the motor carrier or the FMCSA Field Administrator may serve an answer to a petition for reconsideration within 30 days after service of the petition for reconsideration on Adjudications Counsel.

(4) Following the close of the 30-day period, the Assistant Administrator will issue a written decision on the petition for reconsideration.

(5) The decision on the petition for reconsideration will constitute final Agency action.

(k) Stay. A petition for administrative review does not stay the imposition of a final safety fitness determination unless a stay is requested and granted by the Assistant Administrator. A request for stay must be served and filed as indicated in this section.

Start Amendment Part

16. Add § 385.16 to read as follows:

End Amendment Part
Request for review based on unconsidered inspection data.

(a) A motor carrier may ask an FMCSA Field Administrator to conduct an administrative review of a proposed unfit safety fitness determination because of unconsidered, valid data from inspections that occurred in the 24 month period before the proposed safety fitness determination. The motor carrier is required to prove that recalculating the safety fitness determination using the previously unconsidered data would remove the proposed unfit safety fitness determination. This section provides the exclusive remedy to request review of unconsidered inspection data.

(b) Service of request. The motor carrier must serve the original written request for administrative review seeking review of unconsidered inspection data on the FMCSA Field Administrator for the Service Center identified in the notice of proposed unfit safety fitness determination. The request for administrative review and all subsequent filings in proceedings under this section must be served in accordance with § 385.8.

(c) Contents of request. A request for an administrative review of a proposed safety fitness determination because of unconsidered inspection data must include:

(1) A copy of the written notice of proposed safety fitness determination served by FMCSA;

(2) Copies of all additional inspection reports that, if included, would have resulted in FMCSA's determination that the carrier met the safety fitness standard in § 385.5;

(3) An explanation of why consideration of the additional inspection would remove the proposed unfit safety fitness determination; and

(4) A copy of any pending request for administrative review made under § 385.15.

(d) Time for service. A request for an administrative review because of unconsidered inspection data must be served on the FMCSA Field Administrator within 10 days after service of the notice of the proposed unfit safety fitness determination.

(e) Written decision. The Field Administrator will serve a decision:

(1) Within 10 days after service of a request from a hazardous materials or passenger motor carrier that has received a proposed unfit safety fitness determination;

(2) Within 20 days after service of a request from any other motor carrier that has received a proposed unfit safety fitness determination.

(f) Standard of review. In an administrative review of a proposed safety fitness determination under this section, the burden of proof is on the motor carrier to demonstrate that FMCSA did not include inspection report data from all inspections of the motor carrier's vehicles or drivers conducted during the assessment period and that, if included, such data would have resulted in FMCSA's determination that the carrier met the safety fitness standard in § 385.5.

(g) Final Agency action. The decision of the Field Administrator constitutes final Agency action, and no additional request for administrative review by FMCSA is available.

(h) Stay. A petition for administrative review under this section does not stay the imposition of a final safety fitness determination unless a stay is requested and granted by the Field Administrator.

Start Amendment Part

17. Revise § 385.17 to read as follows:

End Amendment Part
Request to defer final unfit safety fitness determination and to operate under a compliance agreement.

(a) A motor carrier that has taken action to correct the deficiencies that resulted in a proposed unfit safety fitness determination may request a deferral of a final unfit safety fitness determination and that a Field Administrator permit it to continue to operate under a compliance agreement.

(b) Service of request. The motor carrier must serve the original written request seeking deferral of the final unfit safety fitness determination and asking to continue to operate under a compliance agreement on the FMCSA Field Administrator for the Service Center identified in the notice of proposed unfit safety fitness determination. The request for deferral and compliance agreement and all subsequent filings in proceedings under this section must be served in accordance with the provisions of § 385.8.

(c) Contents of request. The motor carrier's request must include evidence that it has taken necessary actions to correct its deficiencies that resulted in the proposed unfit safety fitness determination and that its operations, as set forth in a corrective action plan and evidenced by its corrective actions, will meet the safety standard and factors specified in §§ 385.5 and 385.7. The motor carrier's evidence must explain the safety management breakdowns that resulted in the violations, identify and describe clearly defined safety management policies and procedures to prevent ongoing or future violations, document organizational roles and responsibilities for safety compliance, describe written qualification and hiring standards, training and communication plans, and ongoing compliance monitoring and implementation procedures, and describe such other matters as necessary to assure FMCSA that the motor carrier is able to operate safely.

(d) Time for service. Requests for deferral and a compliance agreement must be served within:

(1) Fifteen (15) days after service of the notice of a proposed unfit safety fitness determination for motor carriers transporting hazardous materials in quantities requiring placarding or transporting passengers by CMV.

(2) Thirty (30) days after service of the notice of a proposed unfit safety fitness determination for all other motor carriers operating CMVs.Start Printed Page 3605

(3) Failure to timely request deferral and a compliance agreement waives the right to seek deferral and to continue to operate under a compliance agreement.

(e) Evaluation of request. FMCSA will make a decision on the request for deferral of a final safety fitness determination based on the documentation the motor carrier submits, together with evidence both that the motor carrier has corrected the deficiencies that resulted in its unfit determination, and that it will be able to meet the performance standards set forth in §§ 385.5 and 385.7. As a condition of deferral of a final safety fitness determination, the carrier will also be required to enter into a compliance agreement. A compliance agreement will include, at a minimum, strict safety performance standards that the carrier must meet and a specified period of time for monitoring of the carrier's safety performance before a deferred proposed determination of unfitness may be withdrawn.

(f) Final Agency action. Except as provided in paragraph (j) of this section, the Field Administrator's decision either deferring the final imposition of a proposed unfit safety fitness determination or denying the request for deferral constitutes final Agency action, and is not subject to further administrative review.

(g) Withdrawal of proposed unfit safety fitness determination. If, after a monitoring period, FMCSA determines that the motor carrier has taken the corrective actions required, has adhered to the compliance agreement for the complete monitoring period, has met the safety performance standards established in the compliance agreement, and is able to demonstrate through performance data or otherwise that it meets the safety standard and factors specified in §§ 385.5 and 385.7, FMCSA will serve a written notice on the motor carrier withdrawing the proposed unfit safety fitness determination.

(h) Failure to comply with deferral requirements. If, after a monitoring period, FMCSA determines that the motor carrier has not taken all the corrective actions required, has not adhered to the terms of the compliance agreement or has not met the safety performance standards established in the compliance agreement, FMCSA will serve a written notice on the motor carrier that its proposed unfit safety fitness determination has become final, order all its motor carrier operations out of out-of-service immediately, and revoke the motor carrier's safety and, if applicable, operating authority registrations.

(i) Stays. A request for deferral and compliance agreement does not stay the imposition of a final safety fitness determination during the consideration of the request unless a stay is requested from and granted by the Field Administrator.

(j) Limited administrative review. Any motor carrier whose request for a deferral of a final unfit safety fitness determination is denied in accordance with this section may request administrative review under § 385.15. The motor carrier must make the request within 30 days of the denial of the request for a deferral of a final safety fitness determination. Administrative review under this paragraph (j) will be limited to whether the denial of such a deferral was an abuse of the discretion of the Field Administrator to refuse to enter a compliance agreement with the motor carrier. If abuse of discretion is found, the Assistant Administrator may order deferral of the final unfit safety fitness determination pending execution of a compliance agreement within a reasonable period, as specified by order, but substantive elements of a compliance agreement are not subject to administrative review and shall not be imposed or stricken in such order. If the proposed safety fitness determination has become final, it shall remain in effect during the period of any administrative review.

Start Amendment Part

18. Add § 385.18 to read as follows:

End Amendment Part
Resuming operations after a final unfit determination.

(a) General. A motor carrier that has been prohibited from operating, had its safety and, if applicable, operating authority registrations revoked, and had its USDOT number inactivated following a final unfit safety fitness determination under this subpart must not resume interstate or intrastate transportation until it obtains new registration(s) and its USDOT number is reactivated in accordance with this section.

(b) Application for registration. Following a final unfit safety fitness determination, a motor carrier must:

(1) Apply for registration under the provisions of part 390, subpart E, of this chapter and if applicable, part 365 of this chapter; and

(2) File an original corrective action plan covering the items outlined in § 385.17(c), including actions planned or completed to resolve the safety deficiencies that resulted in the unfit safety fitness determination, with the Office of Registration and Safety Information, 1200 New Jersey Ave. SE., Washington, DC 20590.

(c) Grant of registration. FMCSA will grant the application for registration and reactivate the motor carrier's USDOT Number after determining that:

(1) The motor carrier has satisfied the requirements of part 390, subpart E, of this chapter and if applicable part 365 of this chapter;

(2) The motor carrier's evidence of corrective action is acceptable; and

(3) The motor carrier agrees to operate under a compliance agreement that conforms to the requirements of § 385.17(c) and (e).

(d) Resuming operations. An applicant may not resume operations until it receives notice from FMCSA that it has been granted registration and that its USDOT number is active.

Start Amendment Part

19. Amend § 385.19 by revising the section heading and paragraphs (a) and (b) to read as follows:

End Amendment Part
Availability of safety fitness determinations.

(a) Final unfit safety fitness determinations and information about carriers operating under a compliance agreement will be made available to other Federal and State agencies in writing, telephonically, or on the Internet available through computer access.

(b) The final unfit safety fitness determination assigned to a motor carrier and information about carriers operating under a compliance agreement will be made available to the public through the Agency's Web site and other information technology systems.

* * * * *
Start Amendment Part

20. Add § 385.21 to read as follows:

End Amendment Part
Transition provisions.

(a) If a motor carrier receives a proposed safety rating of unsatisfactory and a final determination that it is unsatisfactory under the provisions of § 385.11 in effect before [EFFECTIVE DATE OF FINAL RULE], the motor carrier remains subject to the provisions of § 385.13 in effect before [EFFECTIVE DATE OF FINAL RULE].

(b) If a motor carrier receives a notice of a proposed safety rating and safety fitness determination dated before [EFFECTIVE DATE OF FINAL RULE], and issued under the provisions of § 385.11 in effect before [EFFECTIVE DATE OF FINAL RULE] that has not become final, the motor carrier may:

(1) Request an administrative review under the provisions of § 385.15 in effect before [EFFECTIVE DATE OF FINAL RULE]; and/or

(2) Request a change in safety rating under the provisions of § 385.17 in effect before [EFFECTIVE DATE OF Start Printed Page 3606FINAL RULE]. If the notice of safety rating and safety fitness determination thereafter becomes final, the motor carrier is subject to the provisions of § 385.13 in effect before [EFFECTIVE DATE OF FINAL RULE].

Start Amendment Part

21. Amend § 385.101 as follows:

End Amendment Part Start Amendment Part

a. Add an undesignated introductory paragraph; and

End Amendment Part Start Amendment Part

b. Revise the definitions of “Provisional operating authority” and “Safety audit.”

End Amendment Part

The addition and revisions read as follows:

Definitions.

The following definitions apply to this subpart:

* * * * *

Provisional operating authority means the registration under § 365.507 of this chapter that FMCSA grants to a Mexico-domiciled motor carrier to provide interstate transportation within the United States beyond the municipalities along the United States-Mexico border and the commercial zones of such municipalities. It is provisional because the carrier will be subject to the safety monitoring program under this subpart until it satisfies the requirements of § 385.117, and it may be suspended or revoked in accordance with subpart A of this part.

Safety audit means an examination of a motor carrier's operations to gather critical safety data needed to make an evaluation of the carrier's safety performance and basic safety management controls. Safety audits do not result in safety fitness determinations.

Start Amendment Part

22. Amend § 385.103 by revising paragraph (e) to read as follows:

End Amendment Part
Safety monitoring system.
* * * * *

(e) Comprehensive investigation. The FMCSA will conduct a comprehensive investigation on a long-haul Mexico-domiciled carrier within 18 months after the FMCSA issues the carrier provisional operating authority under part 365 of this chapter.

Start Amendment Part

23. Amend § 385.105 by revising paragraphs (a) introductory text and (c) to read as follows:

End Amendment Part
Expedited action.

(a) A long-haul Mexico-domiciled motor carrier committing any of the following violations identified through inspections, or by any other means, may be subjected to an expedited safety audit or comprehensive investigation, or may be required to submit a written response demonstrating corrective action:

* * * * *

(c) A satisfactory response to a written demand for corrective action does not excuse a carrier from the requirement that it undergo a safety audit or comprehensive investigation, as appropriate, during the provisional operating authority period.

Start Amendment Part

24. Revise § 385.109 to read as follows:

End Amendment Part
The safety fitness determination.

(a) The criteria used in an investigation or as a result of on road safety data will be used to determine whether a Mexico-domiciled carrier granted provisional operating authority under § 365.507 of this chapter exercises the necessary basic safety management controls are specified in this subpart and appendix B to this part.

(b) If FMCSA does not assign a Mexico-domiciled carrier a proposed unfit safety fitness determination following a comprehensive investigation conducted under this subpart and consideration of on-road safety data, FMCSA will provide the carrier written notice as soon as practicable, but not later than 45 days after the completion of the comprehensive investigation. The carrier's operating authority will remain in provisional status and its on-road safety performance will continue to be monitored for the remainder of the 18-month provisional registration period.

(c) Unfit safety fitness determination. If FMCSA assigns a Mexico-domiciled carrier a proposed unfit safety fitness determination under this subpart FMCSA will initiate a suspension and revocation proceeding in accordance with subpart A of this part.

[Removed and Reserved]
Start Amendment Part

25. Remove and reserve §§ 385.111, 385.113, and 385.115.

End Amendment Part Start Amendment Part

26. Amend § 385.117 by revising paragraphs (b) and (c) to read as follows:

End Amendment Part
Duration of safety monitoring system for Mexico-domiciled carriers.
* * * * *

(b) If, at the end of this 18-month period, the carrier has passed its most recent safety audit, submitted evidence of acceptable corrective action if applicable, neither an investigation nor on road safety data have resulted in a deferred, proposed or final unfit safety fitness determination, the carrier is neither suspended nor revoked, and no additional enforcement or safety improvement actions are pending, the Mexico-domiciled carrier's provisional operating authority or provisional Certificate of Registration will become standard.

(c) If, at the end of this 18-month period, FMCSA has not been able to conduct a safety audit or comprehensive investigation, the carrier will remain in the safety monitoring system until a safety audit or comprehensive investigation is conducted. If the carrier passes the safety audit or the investigation does not result in a final unfit safety fitness determination, the carrier is neither suspended nor revoked, and the carrier has no additional enforcement or safety improvement actions pending, the carrier's provisional operating authority or provisional Certificate of Registration will become standard.

* * * * *
[Amended]
Start Amendment Part

27. Amend § 385.201 in paragraphs (a) and (b) by removing the phrase “a compliance review,” and adding, in its place, the phrase “an investigation, compliance review,”.

End Amendment Part
[Amended]
Start Amendment Part

28. Amend § 385.203 in paragraphs (a) and (b) by removing the phrase “a compliance review,” and adding, in its place, the phrase “an investigation, compliance review,”.

End Amendment Part Start Amendment Part

29. Amend § 385.307 by redesignating paragraphs (a) through (c) as paragraphs (b) through (d) and adding paragraph (a) to read as follows:

End Amendment Part
What happens after a motor carrier begins operations as a new entrant?
* * * * *

(a) The new entrant is subject to the safety monitoring system in this subpart, the general safety fitness procedures established in subpart A of this part, and the compliance and enforcement procedures applicable to all carriers regulated by FMCSA.

* * * * *
[Amended]
Start Amendment Part

30. Amend § 385.308 as follows:

End Amendment Part Start Amendment Part

a. In paragraph (a), remove the phrase “safety audit or a compliance review” and add, in its place, the phrase “safety audit or an investigation,”.

End Amendment Part Start Amendment Part

b. In paragraphs (b)(1) and (2), remove the phrase “safety audit or compliance review,” and add, in its place, the phrase “safety audit or an investigation,”.

End Amendment Part Start Amendment Part

c. In paragraph (c), remove the phrase “a compliance review,” and add, in its place, the phrase “an investigation”.

End Amendment Part
[Amended]
Start Amendment Part

31. Amend § 385.317 by removing the phrase “a compliance review” and adding, in its place, the phrase “an investigation or on road safety data”.

End Amendment Part
[Amended]
Start Amendment Part

32. Amend § 385.333 as follows: Start Printed Page 3607

End Amendment Part Start Amendment Part

a. In paragraph (b), remove the phrase “ `unfit' after a compliance review” and add, in its place, the word “unfit,”.

End Amendment Part Start Amendment Part

b. In paragraph (d), remove the phrase “safety audit or compliance review,” in each place it appears and adding, in its place, the phrase “safety audit or an investigation,”.

End Amendment Part Start Amendment Part

33. Revise § 385.335 to read as follows:

End Amendment Part
If the FMCSA completes an investigation on a new entrant, will the new entrant also be subject to a safety audit?

If the FMCSA completes an investigation on a new entrant that has not previously been subject to a safety audit and issues a safety fitness determination, the new entrant will not have to undergo a safety audit under this subpart. However, the new entrant will continue to be subject to the 18-month safety-monitoring period prior to removal of the new entrant designation.

Start Amendment Part

34. Amend § 385.407 by revising paragraph (a)(1) to read as follows:

End Amendment Part
What conditions must a motor carrier satisfy for FMCSA to issue a safety permit?

(a) Motor carrier safety performance. (1) The motor carrier must have a comprehensive investigation and must not be issued a proposed or final unfit safety fitness determination by either FMCSA, pursuant to the Safety Fitness Procedures in subpart A of this part, or the State in which the motor carrier has its principal place of business, if the State has adopted and implemented safety fitness procedures that are equivalent to the procedures in subpart A of this part; and

* * * * *
Start Amendment Part

35. Amend § 385.409 by revising paragraph (c) to read as follows:

End Amendment Part
When may a temporary safety permit be issued to a motor carrier?
* * * * *

(c) A temporary safety permit is valid for 180 days after the date of issuance or until the motor carrier receives a comprehensive investigation or the Agency has otherwise made a safety fitness determination, whichever comes first.

(1) A motor carrier that receives a comprehensive investigation and has not been issued an unfit safety fitness determination will be issued a safety permit (see § 385.421).

(2) A motor carrier that receives a comprehensive investigation and has been issued a proposed or final unfit safety fitness determination is ineligible for a safety permit and will be subject to revocation of its temporary safety permit.

* * * * *
Start Amendment Part

36. Amend § 385.413 by revising the section heading and paragraph (a) to read as follows:

End Amendment Part
What happens if a motor carrier receives a proposed or final unfit safety fitness determination?

(a) If a motor carrier does not already have a safety permit, it will not be issued a safety permit (including a temporary safety permit) unless and until the motor carrier has a comprehensive investigation. A proposed or final unfit safety fitness determination will prevent the issuance of a safety permit.

* * * * *
Start Amendment Part

37. Amend § 385.421 by revising paragraphs (a)(3) and (c)(1) to read as follows:

End Amendment Part
Under what circumstances will a safety permit be subject to revocation or suspension by FMCSA?

(a) * * *

(3) A motor carrier is issued a final unfit safety fitness determination or receives a proposed unfit and is subsequently approved to operate under a compliance agreement;

* * * * *

(c) * * *

(1) Immediately after FMCSA determines that an imminent hazard exists, after FMCSA issues a final unfit safety fitness determination, or after a motor carrier loses its operating rights or has its registration suspended for failure to pay a civil penalty or abide by a payment plan;

* * * * *
Start Amendment Part

38. Amend § 385.423 by revising paragraph (a) to read as follows:

End Amendment Part
Does a motor carrier have a right to an administrative review of a denial, suspension, or revocation of a safety permit?
* * * * *

(a) Unfit safety fitness determination. (1) If a motor carrier is issued a proposed unfit safety fitness determination, it has the right to request the following:

(i) An administrative review of a proposed unfit safety fitness determination, as set forth in § 385.15; or

(ii) A review based on unconsidered inspection data as set forth in § 385.16.

(2) After a motor carrier has had an opportunity for administrative review of a proposed unfit safety fitness determination or review based on unconsidered inspection data, FMCSA's issuance of a final safety fitness determination constitutes final Agency action. A motor carrier has no right to further administrative review of FMCSA's denial, suspension, or revocation of a safety permit when the motor carrier has been issued a final unfit safety fitness determination.

* * * * *
Start Amendment Part

39. Amend § 385.503 by revising paragraph (a) to read as follows:

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Results of roadability review.

(a) FMCSA will not assign a safety fitness determination to an intermodal equipment provider based on the results of a roadability review. However, FMCSA may cite the intermodal equipment provider for violations of parts 390, 393, and 396 of this chapter and may impose civil penalties resulting from the roadability review.

* * * * *
Start Amendment Part

40. Amend § 385.607 by revising paragraph (g) to read as follows:

End Amendment Part
FMCSA action on the application.
* * * * *

(g) FMCSA may not re-designate a non-North America-domiciled carrier's registration from new entrant to standard prior to 18 months after the date its USDOT number is issued and subject to successful completion of the safety monitoring system for non-North America-domiciled carriers set out in subpart I of this part. Successful completion includes not receiving a final unfit safety fitness determination as the result of a comprehensive investigation.

Start Amendment Part

41. Amend § 385.701 by adding in alphabetical order a definition for “Comprehensive investigation” and revising the definition for “New entrant registration” to read as follows:

End Amendment Part
Definitions.
* * * * *

Comprehensive investigation. See Compliance review.

New entrant registration means the provisional registration under subpart H of this part that FMCSA grants to a non-North America-domiciled motor carrier to provide interstate transportation within the United States. The carrier will be subject to the enhanced monitoring program under this subpart until it satisfies the requirements of § 385.715.

* * * * *
Start Amendment Part

42. Amend § 385.703 by revising paragraphs (b) and (d) to read as follows:

End Amendment Part
Safety monitoring system.
* * * * *

(b) Safety monitoring. Each non-North America-domiciled carrier new entrant Start Printed Page 3608will be subject to monitoring through inspections.

* * * * *

(d) Comprehensive investigation. FMCSA will conduct a comprehensive investigation on a non-North America-domiciled carrier within 18 months after FMCSA issues the carrier a USDOT Number.

Start Amendment Part

43. Amend § 385.705 by revising the introductory text of paragraph (a) and paragraph (c) to read as follows:

End Amendment Part
Expedited action.

(a) A non-North America-domiciled motor carrier committing any of the following actions identified through inspections, or by any other means, may be subjected to an expedited comprehensive investigation, or may be required to submit a written response demonstrating corrective action:

* * * * *

(c) A satisfactory response to a written demand for corrective action does not excuse a carrier from the requirement that it undergo a comprehensive investigation during the new entrant registration period.

Start Amendment Part

44. Revise § 385.707 to read as follows:

End Amendment Part
The comprehensive investigation.

(a) The criteria used in a comprehensive investigation to determine whether a non-North America-domiciled new entrant exercises the necessary basic safety management controls are specified in appendix B to this part.

(b) No unfit safety fitness determination. If FMCSA does not assign a Non-North America-domiciled carrier an unfit safety fitness determination following a comprehensive investigation conducted under this subpart, FMCSA will provide the carrier written notice as soon as practicable, but not later than 45 days after the completion of the comprehensive investigation. The carrier's registration will remain in provisional status and its on-highway performance will continue to be closely monitored for the remainder of the 18-month new entrant registration period.

(c) Unfit safety fitness determination. If FMCSA assigns a non-North America-domiciled carrier an unfit safety fitness determination following a comprehensive investigation conducted under this subpart, it will initiate a suspension and revocation proceeding in accordance with subpart A of this part.

Start Amendment Part

45. Remove and reserve §§ 385.709, 385.711, and 385.713.

End Amendment Part Start Amendment Part

46. Amend § 385.715 by revising paragraphs (b) and (c) to read as follows:

End Amendment Part
Duration of safety monitoring system.
* * * * *

(b) If, at the end of this 18-month period, the carrier's most recent safety fitness determination was not unfit, the carrier is not operating under a compliance agreement, and no additional enforcement or safety improvement actions are pending, the non-North America-domiciled carrier's new entrant registration will become standard.

(c) If, at the end of this 18-month period, FMCSA has not been able to conduct a comprehensive investigation, the carrier will remain in the safety monitoring system until a comprehensive investigation is conducted. If the results of the comprehensive investigation are not unfit the carrier's new entrant registration will become standard.

* * * * *
Start Amendment Part

47. Revise appendix B to part 385 to read as follows:

End Amendment Part

Appendix B to Part 385—Explanation of Safety Fitness Determination Methodology

1. Safety Fitness Determination (SFD) Background

1.1 Authority

The Secretary of Transportation is required to establish a methodology to determine the safety fitness of owners and operators of commercial motor vehicles (CMVs) operating in commerce. The Secretary delegated this responsibility to the Administrator of the Federal Motor Carrier Safety Administration (FMCSA).

1.2  Safety Fitness Regulation

As directed, FMCSA promulgates regulations that determine the safety fitness of motor carriers. Motor carriers must meet the safety fitness standard through sustained safe performance and compliance with applicable regulations. If the carrier does not meet the standard, FMCSA will issue a proposed and/or final unfit SFD, as appropriate.

1.3 SFD Methodology

1.3.1 The methodology developed by FMCSA evaluates safety fitness and assigns an unfit SFD to motor carriers operating in interstate commerce or in commerce affecting interstate commerce that fail to meet the standard.

1.3.2 This process conforms to § 385.5, Safety fitness standard, and § 385.7, Factors to be considered in making a safety fitness determination, of this part. Under this methodology, a motor carrier's SFD is determined by either or both of the following:

1.3.2.1 On-Road Safety Data—Safety-based violation data from driver/vehicle inspections for all domestic and foreign operations may be calculated in the SFD process according to Behavior Analysis and Safety Improvement Categories (BASICs) (See Tables 1-5 Violation Severity Tables in section 5 of this appendix); or

1.3.2.2 Investigation Results—Violations of Critical and Acute regulations from investigations are also used in the SFD process. These are regulations that FMCSA has identified as linked to likelihood of future crashes or as otherwise significant indicators of CMV owner or operator safety. They are listed in Tables 3-1 and 3-2 of this appendix. Violations of these critical and acute regulations are used to assess the appropriate BASIC. In addition to violations of the critical and acute regulations, the recordable crash rate per million miles may be determined as part of investigations under section 2.1.7 of this appendix, Crash Indicator BASIC.

1.4 Roadmap to This Appendix

Sections 2 and 3 of this appendix describe the complete methodology used by the two components of the SFD process: (1) On-road safety data and (2) investigation results. Section 4 of this appendix describes in detail the SFD calculation and provides examples. Section 5 of this appendix is a set of five violation severity tables, which provide cross-references to the description of violations in the Code of Federal Regulations (CFR).

2. Role of BASICs in the SFD Process

2.1 Description of BASICs

FMCSA employs: (i) All on-road safety performance data from inspections; (ii) critical and acute regulation violations from investigations; and (iii) crash rates from investigations to evaluate motor carrier performance and compliance in seven BASICs. When a motor carrier exhibits consistent non-compliance during inspections, has violations of critical and/or acute regulations in the BASICs identified through an investigation, or has a preventable crash rate that meets or is greater than established standards, the carrier will fail the BASIC. Any two or more failed BASICs will result in a proposed unfit SFD as described in section 4 of this appendix.

The BASICs are:

2.1.1 Unsafe Driving—Operation of CMVs by drivers in a dangerous or careless manner. Examples of violations include: Speeding, reckless driving, improper lane change, inattention, failure to wear safety belt while operating a CMV, and texting or using a mobile telephone while operating a CMV. This BASIC corresponds to the requirement in § 385.5(e) of the safety fitness standard.

2.1.2 Hours of Service (HOS) Compliance—Operation of CMVs by drivers who are not in compliance with the HOS regulations. This BASIC includes violations of driving time limitations and violations of regulations regarding the complete and accurate recording of records of duty status (commonly known as log books) as they Start Printed Page 3609relate to HOS requirements. Examples of violations include exceeding HOS limits, falsification of records of duty status, and incomplete records of duty status. This BASIC corresponds to the requirement in § 385.5(h) of the safety fitness standard.

2.1.3 Driver Fitness—Operation of CMVs by drivers who are unfit to operate a CMV due to lack of training, experience, or medical qualifications. Examples of violations include: Failure to have a valid and appropriate commercial driver's license (CDL) or being medically unqualified to operate a CMV. This BASIC corresponds to the requirement in § 385.5(b) and (d) of the safety fitness standard.

2.1.4 Vehicle Maintenance—CMV failure due to improper or inadequate maintenance. Examples of violations include: brakes, lights, cargo securement, and other mechanical defects or failure to make required repairs. This BASIC corresponds to the requirement in § 385.5(f) and (i) of the safety fitness standard.

2.1.5 Hazardous Materials (HM) Compliance—CMV incident resulting from shifting HM, a release of HM, and unsafe handling of HM. Examples of violations include: improper HM load securement and hazardous material handling. This BASIC corresponds to the requirement in § 385.5(j), (k), and (l) of the safety fitness standard.

2.1.6 Controlled Substances and Alcohol—Operation of CMVs by drivers and motor carriers that fail to comply with requirements on alcohol or illegal controlled substances. Examples of violations include: Use or possession of controlled substances or alcohol or using a driver before receiving a negative pre-employment result. This BASIC corresponds to the requirement in § 385.5(a) and (e) of the safety fitness standard. This BASIC can only fail based on investigation results.

2.1.7 Crash Indicator—Preventable recordable crash rate per million vehicle miles traveled (VMT). A recordable crash, consistent with the definition for “accident” in 49 CFR 390.5, means an occurrence involving a CMV on a highway in motor carrier operations in commerce that results in a fatality; in bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the crash; or in one or more motor vehicles incurring disabling damage that requires the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle. This BASIC corresponds to the requirement in § 385.5(l) of the safety fitness standard. This BASIC can only fail from the preventable crash rate recorded during an investigation.

2.2 Data Sources for Assessing On-Road Safety Performance

The data used to assess on-road safety performance in the BASICs are recorded in FMCSA's Motor Carrier Management Information System (MCMIS). The specific data elements are described below.

2.2.1 Driver/Vehicle Inspections are examinations of individual CMVs and drivers by certified Federal, State, or local inspectors or officers to determine if the CMVs and drivers are in compliance with the Federal Motor Carrier Safety Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs).

2.2.2 Violations are instances of non-compliance recorded and documented during driver/vehicle inspections. The methodology incorporates both out-of-service violations and non-out-of-service violations.

2.2.3 Motor Carrier Census Data are first collected when a carrier obtains a USDOT number. This information is recorded in MCMIS by FMCSA and is updated during investigations, during CMV registration in States participating in the Performance and Registration Information Systems Management (PRISM) Program, by the biennial update required by FMCSA regulation (49 CFR 390.19(b)), and at the request of the motor carrier. Census data are used to identify individual motor carriers and enable FMCSA to attribute safety events, e.g., driver/vehicle inspections, crashes, and investigations, to the appropriate motor carrier. Census data are also used in the methodology to normalize on-road safety data to calculate BASIC failure standards. Examples of census data include: Number and types of power units operated, physical location of the carrier's principal place of business, annual Vehicle Miles Traveled, and type of commodities hauled.

2.3 Determining Failed BASICs From Driver/Vehicle Inspection Results

Driver/vehicle inspection and violation data are used to assess SFD in five of the seven BASICs—Unsafe Driving, HOS Compliance, Driver Fitness, Vehicle Maintenance, and Hazardous Materials (HM) Compliance. All safety-based violations of the FMCSRs and HMRs, specified in Tables 1-5 Violation Severity Tables in section 5 of this appendix, are included in calculating the BASICs from Driver/Vehicle Inspections.

2.3.1 Types of Inspections: Inspections may include reviews of the driver, vehicle, HM, shipment, and combinations of inspections, as well as special targeted inspections. However, the inspections must include reviews of the appropriate regulations as noted below.

2.3.2 Driver Inspections: To qualify for inclusion in the SFD assessment, a driver inspection must include reviews of the driver's compliance with the regulations associated with:

2.3.2.1 Proper licensing

2.3.2.2 Medical qualification

2.3.2.3 Controlled substances and alcohol

2.3.2.4 Hours of service, and

2.3.2.5 Operating authority

2.3.3 Vehicle Inspections: To qualify for inclusion in the SFD assessment, a vehicle inspection must include reviews of the vehicles' compliance with the regulations associated with:

2.3.3.1 Brake systems

2.3.3.2 Coupling devices

2.3.3.3 Exhaust systems

2.3.3.4 Frames

2.3.3.5 Fuel systems

2.3.3.6 Lighting devices

2.3.3.7 Cargo securement

2.3.3.8 Steering mechanisms

2.3.3.9 Suspensions

2.3.3.10 Tires

2.3.3.11 Trailer bodies

2.3.3.12 Wheels, rims and hubs

2.3.3.13 Windshield wipers

2.3.3.14 Emergency exits (buses), and

2.3.3.15 Engine and battery electrical cables and systems (buses)

2.3.4 HM Inspections: To qualify for inclusion in the SFD assessment, an inspection of HM must include reviews of the shipment's compliance with the applicable regulations associated with:

2.3.4.1 Shipping papers

2.3.4.2 Placarding

2.3.4.3 Bulk packages

2.3.4.4 Transport vehicle markings

2.3.4.5 Poison inhalation hazard markings

2.3.4.6 Non-bulk packaging

2.3.4.7 Loading and securement

2.3.4.8 Forbidden items

2.3.4.9 Radioactive materials and radiation levels, and

2.3.4.10 Emergency response assistance plans

2.3.5 Walk-Around Driver/Vehicle Inspection: At a minimum, these inspections must include examination of:

2.3.5.1 Driver's license

2.3.5.2 Medical examiner's certificate

2.3.5.3 Skill Performance Evaluation (SPE) Certificate (if applicable)

2.3.5.4 Alcohol and drugs

2.3.5.5 Driver's record of duty status as required

2.3.5.6 Hours of service

2.3.5.7 Seat belt

2.3.5.8 Vehicle inspection report(s) (if applicable)

2.3.5.9 Brake systems

2.3.5.10 Coupling devices

2.3.5.11 Exhaust systems

2.3.5.12 Frames

2.3.5.13 Fuel systems

2.3.5.14 Lighting devices (headlamps, tail lamps, stop lamps, turn signals and lamps/flags on projecting loads)

2.3.5.15 Securement of cargo

2.3.5.16 Steering mechanisms

2.3.5.17 Suspensions

2.3.5.18 Tires

2.3.5.19 Van and open-top trailer bodies

2.3.5.20 Wheels, rims and hubs

2.3.5.21 Windshield wipers

2.3.5.22 Emergency exits

2.3.5.23 Electrical cables and systems in engine and battery compartments (buses), and

2.3.5.24 HM requirements as applicable. HM required inspection items will be inspected by certified HM inspectors.

It is contemplated that the walk-around driver/vehicle inspection will include only those items that can be inspected without physically getting under the vehicle.

2.3.6 Quantifying the Violations: Each carrier's driver/vehicle violations from inspections are classified into the appropriate BASIC and are then time weighted, severity weighted, and normalized by exposure to form a quantifiable absolute measure in each BASIC as calculated in section 2.4 of this appendix.

Inspections and any violations recorded during the previous 24 months in any relevant level driver/vehicle inspection that matches the FMCSR and HMR violations Start Printed Page 3610listed for the appropriate BASIC are used in the calculation. Driver inspections are relevant to the Unsafe Driving, Hours of Service Compliance, and Driver Fitness BASICs. Vehicle inspections are relevant to the Vehicle BASIC and vehicle inspections with placardable hazardous materials are relevant to the Hazardous Materials BASIC. The applicable violations are shown in Tables 1-5, in section 5 of this appendix, Violation Severity Tables. Where multiple counts of the same violation are recorded, the methodology uses each violation recorded only once per inspection.

2.3.7 Violation Severity: Applicable safety-based violations of the FMCSRs and HMRs that are associated with each BASIC and documented during an inspection are assigned severity weights that reflect their association with crash risk in terms of crash occurrence and crash consequences. The stronger the relationship between a violation and crash risk, the higher its assigned weight. A separate weighting parameter identifies violations that result in an out-of-service order as defined in 49 CFR 390.5, and additional weight is applied to these violations.

The violation severity weights of 1 to 10 can be found in Tables 1 to 5 in section 5 of this appendix. The Agency uses severity weights to differentiate crash risks relative to particular violations within a particular BASIC only. The level of crash risk is assigned to each applicable violation ranging from 1 (less severe) to 10 (most severe); see the HOS Compliance Table (Table 2 in section 5 of this appendix, Violation Severity Tables) for the violations' corresponding severity weights.

An out-of-service weight of 2 is then added to the severity weight of out-of-service violations, except for violations in the Unsafe Driving BASIC because unsafe driving violations rarely result in an out-of-service condition.

In cases of multiple counts of the same violation, the out-of-service weight of 2 applies only to the most severe count, if any of the counts of the violations are out-of-service.

2.3.8 Time Weights: Each inspection and associated violation is assigned a time weight. The time weight of inspections and violations decreases as time elapses, resulting in more recent inspections having a greater impact on a motor carrier's measure within a BASIC than results of older inspections. Events beyond 24 months are not used for SFD. The 24-month time frame was chosen based on FMCSA analysis indicating that using 24 months of inspection data provided an adequate time frame to identify motor carriers with performance deficiencies and to assess improvements or degradation in performance. The inspections and violations are grouped into three time periods and assigned a time weight. Inspections conducted and violations recorded in the most recent time period (recorded in the past 6 months) receive a time weight of 3. Inspections conducted and violations recorded in the next most recent time period (older than 6 months and within the past 12 months) receive a time weight of 2. Inspections conducted and violations recorded in the oldest time period (older than 12 months but within the past 24 months) receive a time weight of 1.

2.3.9 Time and Severity Weight. This weight is a violation's severity weight multiplied by its time weight. The sum of all violation severity weights for any one inspection is capped at a maximum of 30, prior to applying time weights.

2.3.10 Normalization: When appropriate, the motor carrier's BASICs measures are normalized to reflect differences in inspection and other safety oversight exposure among motor carriers. The normalization approach varies depending on the BASIC being measured.

HOS Compliance and Driver Fitness measures are normalized by adding the number of time-weighted driver inspections, while Vehicle Maintenance BASIC measures are normalized by adding the number of time-weighted vehicle inspections. The HM Compliance BASIC is normalized by adding the number of time-weighted vehicle inspections where placardable quantities of HM were present. The inspections used to normalize a BASIC measure are considered relevant inspections.

The Unsafe Driving BASIC is calculated by reference to carrier size (i.e., a hybrid calculation using power units and VMT) instead of by the number of inspections. Carriers with known above-average truck utilization, in terms of VMT per power unit, have their size adjusted upwards to account for their additional exposure to being found with Unsafe Driving BASIC violations such as speeding. Section 2.4.1.2 of this appendix contains a further explanation of this adjustment.

2.3.11 Data Sufficiency: To ensure that a BASIC measure is a viable metric of systemic safety problems, data sufficiency criteria are applied. The data sufficiency criteria require that a motor carrier has had at least 11 inspections with one or more violations in each inspection. These criteria ensure adequate performance data that demonstrate a pattern of violations across multiple inspections are obtained before an unfit SFD is proposed.

2.3.12 Safety-Event Groups: The SFD BASIC failure standards are based on the number of safety events (i.e., violations or inspections). Carriers with similar numbers of safety events are grouped together and compared against the failure standard associated with that safety event group. This tiered approach accounts for variability in levels of exposure and enables carriers with similar levels of exposure to be held to the same standards.

2.4 SFD BASIC Failure Standards

The measures for each of a motor carrier's BASICs are calculated and compared to SFD BASIC failure standards. Higher measures indicate a lower level of safety performance; and, therefore, any carrier's measure that equals or is greater than the SFD BASIC failure standard constitutes a failure in that BASIC. These failed BASICs measures are then applied to the SFD calculation described in section 4 of this appendix.

Table 2-1 through Table 2-8 of this appendix show the SFD BASIC failure standards. The failure standards were established at levels equivalent to the measures that would have placed a motor carrier at the 96th percentile for the Unsafe Driving and HOS Compliance BASICs and the 99th percentile for the Driver Fitness, Vehicle Maintenance, and HM Compliance BASICs for each safety-event group as of March 22, 2013.

A carrier's absolute BASIC performance measure, not the carrier's percentile within a given month, is used to determine if the carrier failed the BASIC. A carrier with a BASIC measure that equals or is greater than the failure standard for the carrier's safety-event group fails that BASIC.

2.4.1 Unsafe Driving BASIC: A motor carrier's measure is calculated through driver inspections as follows:

The Unsafe Driving BASIC accounts for further carrier differences by dividing the carrier population into two segments based on the current mix of the types of vehicles the carrier operates. This differentiates the levels of exposure associated with carriers that have fundamentally different types of operations.

The two segments are “combination” or “straight truck.” The combination segment includes those carriers that operate either truck tractors or motor coaches. Carriers are placed in the combination category if 70 percent or more of the carrier's total power units meet that definition. The straight truck segment includes all other carriers, including those that operate straight trucks, HM cargo tank trucks, or school buses/mini-buses/limousines/vans with a capacity of 9 or more passengers. These different types of power units are defined on the Application for USDOT Registration/Operating Authority (Form MCSA-1) instructions.

The BASIC failure standards are shown in Table 2-1 and 2-2 of this appendix. Any carrier with an Unsafe Driving BASIC measure equal to or greater than the safety-event group failure standard fails this BASIC.Start Printed Page 3611

Table 2-1 to Appendix B to Part 385—Unsafe Driving Failure Standards: Straight Truck Segment

Safety-event group (number of inspections with unsafe driving violations)BASIC failure standard (equivalent to the 96th percentile)
11-189.64
19-495.12
50+1.47

Table 2-2 to Appendix B to Part 385—Unsafe Driving Failure Standards: Combination Segment

Safety-event group (number of inspections with unsafe driving violations)BASIC failure standard (96% threshold)
11-2114.21
22-579.58
58-1496.26
150+2.80

2.4.1.1 Unsafe Driving average power units. The Unsafe Driving BASIC violations are normalized by the number of owned, term-leased, and trip-leased power units (truck tractors, straight trucks, HM cargo tank trucks, motorcoaches, and school buses/mini-buses/limousines/vans with a capacity of 9 or more passengers) based on FMCSA's census data and are further adjusted for VMT where available, as explained in the “Utilization Factor” section of this appendix. The average number of power units for each carrier is calculated using the carrier's current number of power units as recorded in the motor carrier census at 6 months and 18 months prior to the SFD. The average power unit calculation is shown below:

2.4.1.2 Unsafe Driving Utilization Factor. The Unsafe Driving Utilization Factor is a multiplier that adjusts the average power unit values based on utilization in terms of VMT per average power unit where VMT data from the past 24 months are available. In cases where the VMT data has been obtained multiple times over the past 24 months for the same carrier, the most current VMT figure is used. The Utilization Factor is calculated as follows:

(a) Determine carrier segment as “combination” or “straight truck” based on the types of vehicles the carrier operates, as previously defined in this section.

(b) Calculate the VMT per average power unit by taking the most recent positive VMT data and dividing it by the average power units, as previously defined in this section.

(c) Using the VMT per average power unit, based on paragraphs (a) and (b) of this section, find the Utilization Factor in the following tables:

Table 2-4 to Appendix B to Part 385—Utilization Factors, Based on VMT per Average Power Unit for Straight Truck Segment

VMT per average power unitUtilization factor
Less Than 20,0001.
20,000-60,000VMT per Power Unit/20,000.
60,000-200,0003.
Greater Than 200,0001.
No Recent VMT Information1.

2.4.2 HOS Compliance BASIC: A motor carrier's measure is calculated using driver inspections as follows:

Start Printed Page 3612

The failure standards are shown in Table 2-5 of this appendix. Any carrier with an HOS Compliance BASIC measure equal to or greater than the failure standard shown for its safety-event group fails this BASIC.

Table 2-5 to Appendix B to Part 385—HOS Compliance Failure Standards

Safety-event group (number of inspections)BASIC failure standard (96% threshold)
11-204.15
21-1003.13
101-5002.2
501+1.54

2.4.3 Driver Fitness BASIC: A motor carrier's measure is calculated using driver inspections as follows:

The failure standards are shown in Table 2-6 of this appendix. Any carrier with a Driver Fitness BASIC measure equal to or greater than the failure standard shown for its safety-event group fails this BASIC.

Table 2-6 to Appendix B to Part 385—Driver Fitness Failure Standards

Safety-event group (number of inspections)BASIC failure standard (99% threshold)
11-202.74
21-1001.39
101-5000.50
501+0.24

2.4.4 Controlled Substances and Alcohol BASIC: A motor carrier cannot fail this BASIC through inspection data alone because of the limited amount of such data available through inspections. See sections 3.1, Critical Regulations, and 3.2, Acute Regulations, in this appendix for more information on how this BASIC is evaluated through an investigation of the motor carrier's compliance with controlled substances and alcohol regulations.

2.4.5 Vehicle Maintenance BASIC: A motor carrier's measure is calculated using vehicle inspections as follows:

The failure standards are shown in Table 2-7 of this appendix. Any carrier with a Vehicle Maintenance BASIC measure equal to or greater than the failure standard shown for its safety-event group fails this BASIC.

Table 2-7 to Appendix B to Part 385—Vehicle Maintenance Failure Standard

Safety-event group (number of inspections)BASIC failure standard (99% threshold)
11-2018.79
21-10016.12
101-50011.82
501+8.91

2.4.6 HM Compliance BASIC: A motor carrier's measure is calculated using vehicle inspections where placardable quantities of HM are being transported as follows.

The failure standards are shown in Table 2-8 of this appendix. Any carrier with a HM Compliance BASIC measure equal to or greater than the failure standard shown for its safety-event group fails this BASIC.

Table 2-8 to Appendix B to Part 385—HM Compliance Failure Standards

Safety-event group (number of inspections)BASIC failure standard (99% threshold)
11-156.87
16-404.82
41-1002.56
Start Printed Page 3613
101+1.95

2.4.7 Crash Indicator BASIC: See section 3.3 in this appendix for more information on how this BASIC is evaluated during an investigation.

3. Investigation Results in the SFD Process

3.1 Critical Regulations

Violations of critical regulations are identified through investigations. A critical regulation means an applicable safety regulation is related to management or operational systems controls. A pattern of noncompliance with a critical regulation must be found to affect a safety fitness determination. A BASIC is failed when these violations are discovered in at least 10 percent of the carrier's records examined, and more than one violation must be found. Table 3-1 of this appendix provides a list of cross-references of the critical regulations to the appropriate BASICs. These are existing regulations with actual legal prohibitions and requirements set forth in and controlled by the language of the substantive violations in each section of title 49 of the CFR cross-referenced.

Table 3-1 to Appendix B to Part 385—Critical Regulations

49 CFR SectionDescription of violationBehavior analysis and safety improvement category (BASIC)
173.24(b)(1)Accepting for transportation or transporting a package that has an identifiable release of a HM to the environmentHM Compliance.
173.24b(d)(2)Loading bulk packaging with an HM which exceeds the maximum weight of lading marked on the specification plateHM Compliance.
173.33(a)(1)Offering or accepting an HM for transportation in an unauthorized cargo tankHM Compliance.
173.33(a)(2)Loading or accepting for transportation two or more materials in a cargo tank motor vehicle which if mixed result in an unsafe conditionHM Compliance.
173.33(b)(1)Loading HM in a cargo tank if during transportation any part of the tank in contact with the HM would have a dangerous reactionHM Compliance.
177.800(c)Failing to instruct a category of employees in HM regulationsDriver Fitness.
177.817(a)Transporting a shipment of HM not accompanied by a properly prepared shipping paperHM Compliance.
177.834(i)Loading or unloading a cargo tank without a qualified person in attendanceHM Compliance.
177.848(d)Failing to store, load, or transport HM in accordance with the segregation tableHM Compliance.
180.407(a)Transporting a shipment of HM in a cargo tank that has not been inspected or retested in accordance with § 180.407HM Compliance.
382.301(a)Using a driver before the motor carrier has received a negative pre-employment controlled substance test resultControlled Substances.
382.303(a)Failing to conduct post-accident testing on driver for alcoholControlled Substances
382.303(b)Failing to conduct post-accident testing on driver for controlled substancesControlled Substances.
382.305(b)(1)Failing to conduct random alcohol testing at an annual rate of not less than the applicable annual rate of the average number of driver positionsControlled Substances.
382.305(b)(2)Failing to conduct random controlled substances testing at an annual rate of not less than the applicable annual rate of the average number of driver positionsControlled Substances.
382.309Using a driver without a return to duty testControlled Substances.
382.503Allowing a driver to perform a safety sensitive function, after engaging in conduct prohibited by subpart B, without being evaluated by a substance abuse professional, as required by § 382.605Controlled Substances.
383.3(a)/383.23(a)Using a driver who does not possess a valid CDLDriver Fitness.
391.45(a)Using a driver not medically examined and certifiedDriver Fitness.
391.45(b)(1)Using a driver not medically examined and certified during the preceding 24 monthsDriver Fitness.
391.51(a)Failing to maintain a driver qualification file on each driver employedDriver Fitness.
392.2Operating a motor vehicle not in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operatedUnsafe Driving.
392.6Scheduling a run which would necessitate the vehicle being operated at speeds in excess of those prescribedUnsafe Driving.
392.9(a)(1)Requiring or permitting a driver to drive without the vehicle's cargo being properly distributed and adequately securedVehicle Maintenance.
395.1(h)(1)(i)Requiring or permitting a property-carrying CMV driver to drive more than 15 hours (Driving in Alaska)HOS Compliance.
395.1(h)(1)(ii)Requiring or permitting a property-carrying CMV driver to drive after having been on duty 20 hours (Driving in Alaska)HOS Compliance.
395.1(h)(1)(iii)Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 70 hours in 7 consecutive days (Driving in Alaska)HOS Compliance.
395.1(h)(1)(iv)Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 80 hours in 8 consecutive days (Driving in Alaska)HOS Compliance.
395.1(h)(2)(i)Requiring or permitting a passenger-carrying CMV driver to drive more than 15 hours (Driving in Alaska)HOS Compliance.
395.1(h)(2)(ii)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty 20 hours (Driving in Alaska)HOS Compliance.
395.1(h)(2)(iii)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 70 hours in 7 consecutive days (Driving in Alaska)HOS Compliance.
395.1(h)(2)(iv)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 80 hours in 8 consecutive days (Driving in Alaska)HOS Compliance.
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395.1(o)Requiring or permitting a property-carrying CMV driver to drive after having been on duty 16 consecutive hoursHOS Compliance.
395.3(a)(1)Requiring or permitting a property-carrying CMV driver to drive without taking an off-duty period of at least 11 consecutive hours prior to drivingHOS Compliance.
395.3(a)(2)Requiring or permitting a property-carrying CMV driver to drive after the end of the 14th hour after coming on dutyHOS Compliance.
395.3(b)(1)Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 60 hours in 7 consecutive daysHOS Compliance.
395.3(b)(2)Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 70 hours in 8 consecutive daysHOS Compliance.
395.5(a)(1)Requiring or permitting a passenger-carrying CMV driver to drive more than 10 hours.HOS Compliance.
395.5(a)(2)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty 15 hoursHOS Compliance.
395.5(b)(1)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 60 hours in 7 consecutive daysHOS Compliance.
395.5(b)(2)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 70 hours in 8 consecutive daysHOS Compliance.
395.8(a)Failing to require driver to make a record of duty statusHOS Compliance.
395.8(e)False reports of records of duty statusHOS Compliance
395.8(i)Failing to require driver to forward within 13 days of completion, the original of the record of duty statusHOS Compliance.
395.8(k)(1)Failing to preserve driver's record of duty status for 6 monthsHOS Compliance.
395.8(k)(1)Failing to preserve driver's records of duty status supporting documents for 6 monthsHOS Compliance.
396.3(b)Failing to keep minimum records of inspection and vehicle maintenanceVehicle Maintenance.

3.2 Acute Regulations

Another component in the SFD process is the set of 16 Acute regulations. A BASIC can be failed based on documentation of violation of a single instance of one of the acute regulations discovered during any investigation. Table 3-2 of this appendix contains cross references to acute regulations that are existing legal prohibitions and requirements set forth in and controlled by the language of the substantive violations in each section of title 49 of the CFR cross-referenced herein.

Table 3-2 to Appendix B to Part 385—Acute Regulations

49 CFR SectionDescription of violationBehavior analysis and safety improvement category (BASIC)
177.801Accepting for transportation or transporting a forbidden materialHM Compliance.
382.115(a)Failing to implement an alcohol and/or controlled substances testing program (domestic motor carrier)Controlled Substances.
382.115(b)Failing to implement an alcohol and/or controlled substances testing program (foreign motor carrier)Controlled Substances.
382.201Using a driver known to have an alcohol concentration of 0.04 or greaterControlled Substances.
382.211Using a driver who has refused to submit to an alcohol or controlled substances test required under part 382Controlled Substances.
382.215Using a driver known to have tested positive for a controlled substance, or to have otherwise violated § 382.215Controlled Substances.
382.305Failing to implement a random controlled substances and/or an alcohol testing programControlled Substances.
383.37(a)Knowingly allowing, requiring, permitting, or authorizing an employee who does not have a current CLP or CDL, who does not have a CLP or CDL with the proper class or endorsements, or who operates a CMV in violation of any restriction on the CLP or CDL to operate a CMVDriver Fitness.
383.51(a)Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a CMVDriver Fitness.
391.11(b)(4)Using a physically unqualified driverDriver Fitness.
391.15(a)Using a disqualified driverDriver Fitness.
396.9(c)(2)Requiring or permitting the operation of a motor vehicle declared “out-of-service” before repairs were madeVehicle Maintenance.
396.11(c)Failing to correct out-of-service defects listed by driver in a driver vehicle inspection report before the vehicle is operated againVehicle Maintenance.
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3.3 Crash Indicator BASIC

A recordable crash, consistent with the definition for “crash” in 49 CFR 390.5, means an occurrence involving a CMV on a highway in motor carrier operations in commerce, including within Canada or Mexico, that results in (i) a fatality; (ii) in bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the crash; or (iii) in one or more motor vehicles incurring disabling damage that requires the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.

A motor carrier can only fail the Crash Indicator BASIC if the motor carrier incurs two or more recordable crashes within the 12 months before the investigation. FMCSA will then determine if the reportable crashes were preventable.

For motor carriers with two or more recordable crashes within the 12 months before the investigation, the investigator will:

(1) Determine the carrier's recordable crash rate. The recordable crash rate is the number of recordable crashes per million miles traveled by the carriers CMVs over the previous 12 months.

(2) If the recordable crash rate would cause the carrier to fail the Crash Indicator BASIC, calculate the preventable crash rate for the carrier by evaluating the preventability of the recordable crashes that have occurred in the 12 months before the investigation. 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 crash 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 crash was preventable.”

Preventability will be determined according to the standard set forth above. It is important to note that preventability is a different, higher standard than fault. The standard of preventability for a professional driver includes the expectation that he or she anticipated the possibility of the crash and adjusted his or her driving or behavior to avoid the crash.

In determining preventability, FMCSA may also follow the preventability guidance found on FMCSA's Web site at http://www.fmcsa.dot.gov/​safety-security/​eta/​index.htm. This guidance was developed to assist in determining the preventability of a crash. This guidance, however, does not supplant the analytical judgment of FMCSA professionals making preventability determinations. Each crash must be judged individually, taking into account available evidence.

If the motor carrier's preventable crash rate exceeds the failure standard for the Crash Indicator BASIC, the motor carrier will fail that BASIC. An urban carrier (a carrier operating entirely within a radius of 100 air miles) with a preventable crash rate greater than 1.7 will fail the Crash Indicator BASIC. All other carriers with a preventable crash rate greater than 1.5 will fail the Crash Indicator BASIC.

4. SFD Methodology

As shown in Figure 4-1 of this appendix, under this methodology there are two major sources that could impact a motor carrier's SFD: (1) Driver/vehicle inspections; and (2) violations of the critical and acute regulations or preventable crashes documented during an investigation. As shown in Figure 4-1, data obtained under sources (1) and (2) align with the seven BASICs and are used to determine whether a carrier has failed any of the BASICs.

4.1 SFD Calculation

4.1.1 Standards for Failed BASICs: The BASICs were analyzed for their relationship with carrier crash risk. The BASICs with the strongest associations with crash risk have a stricter failure standard (i.e., equivalent percentile) than those with less crash relationship. As a result, the failure standards for these two BASICs related to driver safety, Unsafe Driving and HOS Compliance, are distinguished from the others to place more emphasis on these types of violations consistent with current FMCSA research, which suggests that the majority of CMV crashes in which the motor carrier can be held accountable involve CMV driver error.

4.1.2 Unfit. If the carrier fails two BASICs through (1) inspection data, (2) an investigation, or (3) a combination of inspection and investigation data, then the carrier receives a proposed unfit SFD. For the purposes of the determination, there is no difference between a failed BASIC based on driver/vehicle inspection safety results and a failed BASIC based on violations of the critical and acute regulations found through investigation; either or both circumstances will produce a failed BASIC, and a combination of two or more failed BASICs results in a proposed unfit SFD for the carrier. If the carrier has not failed two BASICs, then the carrier would be permitted to continue operating.

4.2 Calculation Examples

To further demonstrate the methodology, three examples of how a proposed SFD of unfit is calculated are provided below.

4.2.1 Example 1—Proposed Unfit SFD Based on Inspection Data: In the first example (see Figure 4-1 of this appendix), Carrier A had inspections that resulted in the discovery of several HOS Compliance BASIC-related violations. Based on the methodology described in section 2.4.2 of this appendix, the carrier's HOS Compliance BASIC measure exceeded the BASIC failure standard in Table 2-5 of this appendix, which caused the carrier to fail this BASIC. In addition, the motor carrier had violations that caused it to exceed the failure standards in the Vehicle Maintenance BASIC. Because there are two failed BASICs, this carrier would receive a proposed SFD of unfit.

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4.2.2 Example 2—Proposed Unfit SFD Based on Inspection Data and an Investigation: In the second example (see Figure 4-2 of this appendix), Carrier B had inspections that resulted in the discovery of several Vehicle Maintenance BASIC-related violations. Based on the methodology described in section 2.4.5 of this appendix, the carrier's Vehicle Maintenance BASIC measure met or exceeded the BASIC failure standard in Table 2-7 of this appendix, which caused the carrier to fail this BASIC. This carrier also received an investigation where at least one critical regulation violation in the Controlled Substances and Alcohol BASIC, listed in section 3.1 of this appendix, was discovered, resulting in a failed Controlled Substances/Alcohol BASIC. Because the motor carrier has two failed BASICs, this carrier would receive an SFD of proposed unfit.

4.2.3 Example 3—Proposed Unfit SFD Based on Investigation Findings: In the third example (see Figure 4-3 of this appendix), Carrier C did not have any BASIC over the unfit threshold based on on-road safety performance, but during an investigation a Start Printed Page 3617sufficient number of violations of either Critical or Acute regulations in two different BASICs were documented. Because two BASICs exceeded the failure standard for this carrier, this carrier would receive an SFD of proposed unfit.

5. Appendix B Violation Severity Tables

These tables provide cross-references to the violations used in the BASICs. The descriptions of the violations here are for convenience only and have no legal effect. The actual legal prohibitions and requirements are set forth in and controlled by the language of the violations in each section of title 49 of the CFR cross-referenced herein.

The Commercial Vehicle Safety Alliance (CVSA) North American Standard Inspection Levels I, II, IV, V, and VI would be considered compatible with these requirements.

Table 1—Unsafe Driving BASIC Violations

49 CFR SectionViolation description shown on driver/vehicle examination report given to CMV driver after inspectionViolation group descriptionViolation severity weight
177.800(d)Unnecessary delay in HM transportation to destinationHM Related1
177.804(b)Failure to comply with 49 CFR 392.80—Texting while Operating a CMV—Placardable HMTexting10
177.804(c)Fail to comply with 392.82—Using Mobile Phone while Operating a CMV—HMPhone Call10
392.2Failure to obey traffic control device (392.2C)Dangerous Driving5
392.2Headlamps—Failing to dim when required (392.2DH)Misc Violations3
392.2Following too close (392.2FC)Dangerous Driving5
392.2Improper lane change (392.2LC)Dangerous Driving5
392.2Lane Restriction violation (392.2LV)Misc Violations3
392.2Improper passing (392.2P)Dangerous Driving5
392.2Unlawfully parking and/or leaving vehicle in the roadway (392.2PK)Other Driver Violations1
392.2Reckless driving (392.2R)Reckless Driving10
392.2Railroad Grade Crossing violation (392.2RR)Dangerous Driving5
392.2Speeding (392.2S)Speeding Related1
392.2State/Local Laws—Speeding 6-10 miles per hour over the speed limit (392.2-SLLS2)Speeding 24
392.2State/Local Laws—Speeding 11-14 miles per hour over the speed limit (392.2-SLLS3)Speeding 37
392.2State/Local Laws—Speeding 15 or more miles per hour over the speed limit (392.2-SLLS4)Speeding 410
392.2State/Local Laws—Speeding work/construction zone (392.2-SLLSWZ)Speeding 410
392.2State/Local Laws—Operating a CMV while texting (392.2-SLLT)Texting10
392.2Improper turns (392.2T)Dangerous Driving5
392.2Failure to yield right of way (392.2Y)Dangerous Driving5
392.6Scheduling run to necessitate speedingSpeeding Related5
392.10(a)(1)Failing to stop at railroad crossing—busDangerous Driving5
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392.10(a)(2)Failing to stop at railroad crossing—chlorineDangerous Driving5
392.10(a)(3)Failing to stop at railroad crossing—placardDangerous Driving5
392.10(a)(4)Failing to stop at railroad crossing—Cargo TankDangerous Driving5
392.14Failed to use caution for hazardous conditionDangerous Driving5
392.16Failing to use seat belt while operating CMVSeat Belt7
392.22(a)Failing to use hazard warning flashersOther Driver Violations1
392.60(a)Unauthorized passenger on board CMVOther Driver Violations1
392.62Unsafe bus operationsOther Driver Violations1
392.62(a)Bus—Standees forward of the standee lineOther Driver Violations1
392.71(a)Using or equipping a CMV with radar detectorSpeeding Related5
392.80(a)Driving a CMV while TextingTexting10
392.80(a)Driving a CMV while Texting (390.17DT)Texting10
392.82(a)(1)Using a hand-held mobile telephone while operating a CMVPhone Call10
392.82(a)(2)Allowing or requiring driver to use a hand-held mobile telephone while operating a CMVPhone Call10
397.3State/local laws ordinances regulationsHM Related1
397.13Smoking within 25 feet of HM vehicleHM Related1
398.4Driving a vehicle to transport migrant workers in noncompliance with part 398Other Driver Violations1

Table 2—HOS Compliance BASIC Violations

49 CFR SectionViolation description shown on driver/vehicle examination report given to CMV driver after inspectionViolation group descriptionViolation severity weight
392.2State/Local Hours-of-Service (392.2H)Hours7
392.3Operating a CMV while ill/fatiguedJumping OOS/Driving Fatigued10
392.3Fatigue—Operate a passenger-carrying CMV while impaired by fatigue. (392.3-FPASS)Jumping OOS/Driving Fatigued10
392.3Fatigue—Operate a property-carrying CMV while impaired by fatigue. (392.3-FPROP)Jumping OOS/Driving Fatigued10
392.3Illness—Operate a CMV while impaired by illness or other cause. (392.3-I)Jumping OOS/Driving Fatigued10
395.1(h)(1)15, 20, 70/80 HOS violations (Alaska-Property)Hours7
395.1(h)(2)15, 20, 70/80 HOS violations (Alaska-Passenger)Hours7
395.1(h)(3)Adverse driving conditions violations (Alaska)Hours7
395.1(o)16 hour rule violation (Property)Hours7
395.3(a)(1)Requiring or permitting driver to drive more than 11 hoursHours7
395.311 hour rule violation (Property) (395.3A1R)Hours7
395.3(a)(2)Requiring or permitting driver to drive after 14 hours on dutyHours7
395.314 hour rule violation (Property) (395.3A2R)Hours7
395.3Driving beyond 14 hour duty period (Property carrying vehicle) (395.3A2-PROP)Hours7
395.3Driving beyond 11 hour driving limit in a 14 hour period. (Property Carrying Vehicle) (395.3A3-PROP)Hours7
395.3(a)(3)(ii)Driving beyond 8 hour limit since the end of the last off duty or sleeper period of at least 30 minutesHours7
395.3(b)60/70—hour rule violationHours7
395.3(b)(1)Driving after 60 hours on duty in a 7 day period. (Property carrying vehicle) (395.3B1-PROP)Hours7
395.3(b)(2)Driving after 70 hours on duty in a 8 day period. (Property carrying vehicle)(395.3B2)Hours7
395.3(b)60/70—hour rule violation (Property) (395.3BR)Hours7
395.3(c)34-hour restart violation (Property)Hours7
395.5(a)(1)10-hour rule violation (Passenger)Hours7
395.5(a)(1)Driving after 10 hour driving limit (Passenger carrying vehicle) (395.5A1-PASS)Hours7
395.5(a)(2)15—hour rule violation (Passenger)Hours7
395.5(a)(2)Driving after 15 hours on duty (Passenger carrying vehicle) (395.5A2-PASS)Hours7
395.5(b)60/70—hour rule violation (Passenger)Hours7
395.5(b)(1)Driving after 60 hours on duty in a 7 day period. (Passenger carrying vehicle) (395.5B1-PASS)Hours7
395.5(b)(2)Driving after 70 hours on duty in a 8 day period. (Passenger carrying vehicle) (395.5B2-PASS)Hours7
395.8Driver's record of Duty Status (general/form and manner)Other Log/Form & Manner1
395.8(a)No driver's record of duty statusIncomplete/Wrong Log5
395.8(e)False report of driver's record of duty statusFalse Log7
395.8(f)(1)Driver's record of duty status not currentIncomplete/Wrong Log5
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395.8(k)(2)Driver failing to retain previous 7 days' logsIncomplete/Wrong Log5
395.13(d)Driving after being declared out-of-serviceJumping OOS/Driving Fatigued10
395.15(b)Onboard recording device information requirements not metIncomplete/Wrong Log5
395.15(c)Onboard recording device improper form and mannerOther Log/Form & Manner1
395.15(f)Onboard recording device failure and driver failure to reconstruct duty statusIncomplete/Wrong Log5
395.15(g)On-board recording device information not availableEOBR Related1
395.15(i)(5)Onboard recording device does not display required informationOther Log/Form & Manner1
398.6Violation of HOS regulations—migrant workersHours7

Table 3—Driver Fitness BASIC Violations

49 CFR SectionViolation description shown on driver/vehicle examination report given to CMV driver after inspectionViolation group descriptionViolation severity weight
177.816Driver training requirementsGeneral Driver Qualification4
383.21Operating a CMV with more than one driver's licenseLicense-related: High8
383.21(a)Operating a CMV with more than one driver's licenseLicense-related: High8
383.23(a)(2)Operating a CMV without a CDLLicense-related: High8
383.25(a)Operating on learner's permit without CDL holder (383.23(c))License-related: High8
383.25(a)(1)Operating on learner's permit without CDL holder (383.23(c)(1))License-related: High8
383.25(a)(2)Operating on learner's permit without valid driver's license (383.23(c)(2))License-related: High8
383.51(a)Driving a CMV (CDL) while disqualifiedLicense-related: High8
383.51(a)Driving a CMV while CDL is suspended for a non-safety-related reason and in the state of driver's license issuance. (383.51A-NSIN)License-related: Medium5
383.51(a)Driving a CMV while CDL is suspended for a non-safety-related reason and outside the state of driver's license issuance (383.51A-NSOUT)License-related: Low1
383.51(a)ADriving a CMV while CDL is suspended for a safety-related or unknown reason and in the state of driver's license issuance. (383.51A-SIN)License-related: High8
383.51(a)Driving a CMV while CDL is suspended for safety-related or unknown reason and outside the driver's license state of issuance. (383.51A-SOUT)License-related: Medium5
383.91(a)Operating a CMV with improper CDL groupLicense-related: High8
383.93(b)(1)No double/triple trailer endorsement on CDLLicense-related: High8
383.93(b)(2)No passenger vehicle endorsement on CDLLicense-related: High8
383.93(b)(3)No tank vehicle endorsement on CDLLicense-related: High8
383.93(b)(4)No HM endorsement on CDLLicense-related: High8
383.93(b)(5)No school bus endorsement on CDLLicense-related: High8
383.93(b)(5)License (CDL)—Operating a school bus without a school bus endorsement as described in 383.93(b)(5) (383.93B5LCDL)License-related: High8
383.95(a)Violating airbrake restrictionLicense-related: High8
386.72(b)Failing to comply with Imminent Hazard OOS OrderFitness/Jumping OOS10
391.11Unqualified driverLicense-related: High8
391.11(b)(1)Interstate driver under 21 years of ageGeneral Driver Qualification4
391.11(b)(4)Driver lacking physical qualification(s)Physical2
391.11(b)(5)Driver lacking valid license for type vehicle being operatedLicense-related: High8
391.11(b)(5)Driver operating a CMV without proper endorsements or in violation of restrictions. (391.11B5-DEN)License-related: High8
391.11(b)(5)Driver does not have a valid operator's license for the CMV being operated. (391.11B5-DNL)License-related: High8
391.11(b)(7)Driver disqualified from operating CMVLicense-related: High8
391.15(a)Driving a CMV while disqualifiedLicense-related: High8
391.15(a)Driving a CMV while disqualified. Suspended for non-safety-related reason and in the state of driver's license issuance. (391.15A-NSIN)License-related: Medium5
391.15(a)Driving a CMV while disqualified. Suspended for a non-safety-related reason and outside the state of driver's license issuance (391.15A-NSOUT).License-related: Low1
391.15(a)Driving a CMV while disqualified. Suspended for safety-related or unknown reason and in the state of driver's license issuance. (391.15A-SIN)License-related: High8
391.15(a)Driving a CMV while disqualified. Suspended for a safety-related or unknown reason and outside the driver's license state of issuance. (391.15A-SOUT)License-related: Medium5
391.41(a)Driver not in possession of medical certificateMedical Certificate1
391.41(a)Operating a property-carrying vehicle without possessing a valid medical certificate (391.41A-F).Medical Certificate1
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391.41(a)Operating a property-carrying vehicle without possessing a valid medical certificate. Previously Cited (391.41A-FPC)Medical Certificate1
391.41(a)Operating a passenger-carrying vehicle without possessing a valid medical certificate. (391.41A-P)Medical Certificate1
391.43(h)Improper medical examiner's certificate formMedical Certificate1
391.45(b)Expired medical examiner's certificateMedical Certificate1
391.49(j)No valid medical waiver in driver's possessionMedical Certificate1
398.3(b)Driver not physically qualifiedPhysical2
398.3(b)(8)No doctor's certificate in possessionMedical Certificate1

Table 4—Vehicle Maintenance BASIC Violations

49 CFR SectionViolation description shown on driver/vehicle examination report given to CMV driver after inspectionViolation group descriptionViolation severity weight
385.103(c)Fail to display current CVSA decal—Provisional AuthorityInspection Reports4
392.2Wheel (Mud) Flaps missing or defective (392.2WC)Windshield/Glass/Markings1
392.7No pre-trip inspectionInspection Reports4
392.7(a)Driver failing to conduct pre-trip inspectionInspection Reports4
392.7(b)Driver failing to conduct a pre-trip inspection of intermodal equipmentInspection Reports4
392.8Failing to inspect/use emergency equipmentEmergency Equipment2
392.9Failing to secure loadGeneral Securement1
392.9(a)Failing to secure loadGeneral Securement1
392.9(a)(1)Failing to secure cargoGeneral Securement1
392.9(a)(2)Failing to secure vehicle equipmentGeneral Securement1
392.9(a)(3)Driver's view/movement is obstructedGeneral Securement1
392.22(b)Failing/improper placement of warning devicesCab, Body, Frame2
392.33Operating CMV with lamps/reflectors obscuredLighting6
392.62(c)(1)Bus—baggage/freight restricts driver operationGeneral Securement1
392.62(c)(2)Bus—Exit(s) obstructed by baggage/freightGeneral Securement1
392.62(c)(3)Passengers not protected from falling baggageGeneral Securement1
392.63Pushing/towing a loaded busTowing Loaded Bus10
393.9Inoperative required lampsClearance Identification Lamps/Other2
393.9Inoperative head lamps (393.9H)Lighting6
393.9Inoperative tail lamp (393.9T)Lighting6
393.9Inoperative turn signal (393.9TS)Lighting6
393.9(a)Inoperative required lampsClearance Identification Lamps/Other2
393.11No/defective lighting devices/reflective devices/projectedReflective Sheeting3
393.11Lower retroreflective sheeting/reflex reflectors—Trailer manufactured on or after 12/1/1993 (393.11LR)Reflective Sheeting3
393.11No retroreflective sheeting/reflex reflectors—Trailer manufactured on or after 12/1/1993 (393.11N)Reflective Sheeting3
393.11Retroreflective sheeting not affixed as required—Trailer manufactured on or after 12/1/1993 (393.11RT)Reflective Sheeting3
393.11No side retroreflective sheeting/reflex reflectors—Trailer manufactured on or after 12/1/1993 (393.11S)Reflective Sheeting3
393.11No retro reflective sheeting or reflex reflectors on mud flaps—Truck Tractor manufactured on or after 7/1/1997 (393.11TL)Reflective Sheeting3
393.11No retroreflective sheeting/reflex reflectors—Truck Tractor manufactured on or after 7/1/1997 (393.11TT)Reflective Sheeting3
393.11No upper body corners retroreflective sheeting/reflex reflectors—Truck Tractor manufactured on or after 7/1/1997 (393.11TU)Reflective Sheeting3
393.11No upper reflex reflectors retroreflective sheeting/reflex reflectors—Trailer manufactured on or after 12/1/1993 (393.11UR)Reflective Sheeting3
393.13(a)Retroreflective tape not affixed as required for Trailers manufactured after 12/1/1993Reflective Sheeting3
393.13(b)No retroreflective sheeting or reflex reflective material as required for vehicles manufactured on or after 12/1/1993Reflective Sheeting3
393.13(c)(1)No side retroreflective sheeting or reflex reflective material as required for vehicles manufactured before 12/1/1993Reflective Sheeting3
393.13(c)(2)No lower rear retroreflective sheeting or reflex reflective material as required for vehicles manufactured before 12/1/1993Reflective Sheeting3
393.13(c)(3)No upper rear retroreflective sheeting or reflex reflective material as required for vehicles manufactured before 12/1/1993Reflective Sheeting3
393.13(d)(1)Improper side placement of retroreflective sheeting or reflex reflective material as required for vehicles manufactured on or after 12/1/1993Reflective Sheeting3
Start Printed Page 3621
393.13(d)(2)Improper lower rear placement of retroreflective sheeting or reflex reflective material requirements for vehicles manufactured before 12/1/1993Reflective Sheeting3
393.13(d)(3)Upper rear retroreflective sheeting or reflex reflective material as required for vehicles manufactured on or after 12/1/1993Reflective Sheeting3
393.17No/defective lamp/reflector-tow-away operationLighting6
393.17(a)No/defective lamps-towing unit-tow-away operationLighting6
393.17(b)No/defective tow-away lamps on rear unitLighting6
393.19Inoperative/defective hazard warning lampLighting6
393.23Required lamp not powered by vehicle electricityClearance Identification Lamps/Other2
393.24(a)Noncompliance with headlamp requirementsLighting6
393.24(b)Noncompliant fog/driving lampsLighting6
393.24(b)Noncompliant fog or driving lamps (393.24BR)Lighting6
393.24(c)Improper headlamp mountingLighting6
393.24(d)Improper head/auxiliary/fog lamp aimingLighting6
393.25(a)Improper lamp mountingLighting6
393.25(b)Lamps are not visible as requiredLighting6
393.25(e)Lamp not steady burningLighting6
393.25(f)Stop lamp violationsLighting6
393.26Requirements for reflectorsReflective Sheeting3
393.28Improper or no wiring protection as requiredOther Vehicle Defect3
393.30Improper battery installationOther Vehicle Defect3
393.40Inadequate brake system on a CMVBrakes, All Others4
393.41No or defective parking brake system on CMVBrakes, All Others4
393.42No brakes as requiredBrakes, All Others4
393.42(a)Brake—Missing required brake. (393.42A-BM)Brakes, All Others4
393.42(a)Brake—All wheels not equipped with brakes as required. (393.42A-BMAW)Brakes, All Others4
393.42(a)Brake—Missing on a trailer steering axle. (393.42A-BM-TSA)Brakes, All Others4
393.43No/improper breakaway or emergency brakingBrakes, All Others4
393.43(a)No/improper tractor protection valveBrakes, All Others4
393.43(d)No or defective automatic trailer brakeBrakes, All Others4
393.44No/defective bus front brake line protectionBrakes, All Others4
393.45Brake tubing and hose adequacyBrakes, All Others4
393.45Brake Tubing and Hose Adequacy—Connections to Power Unit (393.45PC)Brakes, All Others4
393.45Brake Tubing and Hose Adequacy Under Vehicle (393.45UV)Brakes, All Others4
393.45(b)(2)Failing to secure brake hose/tubing against mechanical damage (393.45(a)(4))Brakes, All Others4
393.45(b)(2)Failing to secure brake hose/tubing against mechanical damageBrakes, All Others4
393.45(b)(2)Brake Hose or Tubing Chafing and/or Kinking—Connection to Power Unit (393.45B2PC)Brakes, All Others4
393.45(b)(2)Brake Hose or Tubing Chafing and/or Kinking Under Vehicle (393.45B2UV)Brakes, All Others4
393.45(b)(3)Failing to secure brake hose/tubing against high temperaturesBrakes, All Others4
393.45(d)Brake connections with leaks/constrictionsBrakes, All Others4
393.45(d)Brake Connections with Constrictions—Connection to Power Unit (393.45DCPC)Brakes, All Others4
393.45(d)Brake Connections with Constrictions Under Vehicle (393.45DCUV)Brakes, All Others4
393.45(d)Brake Connections with Leaks—Connection to Power Unit (393.45DLPC)Brakes, All Others4
393.45(d)Brake Connections with Leaks Under Vehicle (393.45DLUV)Brakes, All Others4
393.47Inadequate/contaminated brake liningsBrakes, All Others4
393.47(a)Inadequate brakes for safe stoppingBrakes, All Others4
393.47(b)Mismatched brake chambers on same axleBrakes, All Others4
393.47(c)Mismatched slack adjuster effective lengthBrakes, All Others4
393.47(d)Insufficient brake liningsBrakes, All Others4
393.47(e)Clamp/Roto-Chamber type brake(s) out of adjustmentBrakes Out of Adjustment4
393.47(f)Wedge type brake(s) out of adjustmentBrakes Out of Adjustment4
393.47(g)Insufficient drum/rotor thicknessBrakes, All Others4
393.48(a)Inoperative/defective brakesBrakes, All Others4
393.48(a)Brakes—Hydraulic Brake Caliper movement exceeds 1/8″ (0.125″) (3.175 mm) (393.48A-BCM)Brakes, All Others4
393.48(a)Brakes—Missing or Broken Components (393.48A-BMBC)Brakes, All Others4
393.48(a)Brakes—Rotor (disc) metal-to-metal contact (393.48A-BRMMC)Brakes, All Others4
393.48(a)Brakes—Severe rusting of brake rotor (disc) (393.48A-BSRFS)Brakes, All Others4
393.48(b)(1)Defective brake limiting deviceBrakes, All Others4
393.50Inadequate reservoir for air/vacuum brakesBrakes, All Others4
393.50(a)Failing to have sufficient air/vacuum reserveBrakes, All Others4
Start Printed Page 3622
393.50(b)Failing to equip vehicle—prevent reservoir air/vacuum leakBrakes, All Others4
393.50(c)No means to ensure operable check valveBrakes, All Others4
393.50(d)No or defective air reservoir drain valveBrakes, All Others4
393.51No or defective brake warning deviceBrakes, All Others4
393.52(a)(1)Insufficient braking force as percent of GVW or GCWBrakes, All Others4
393.53(a)Automatic brake adjuster CMV manufactured on or after 10/20/1993—hydraulic brakeBrakes, All Others4
393.53(b)Automatic brake adjuster CMV manufactured on or after 10/20/1994—air brakeBrakes, All Others4
393.53(c)Brake adjustment indicator CMV manufactured on or after 10/20/1994—external automatic adjustmentBrakes, All Others4
393.55(a)ABS—all CMVs manufactured on or after 3/1/1999 with hydraulic brakesBrakes, All Others4
393.55(b)ABS—malfunction indicators for hydraulic brake systemBrakes, All Others4
393.55(c)(1)ABS—all tractors manufactured on or after 3/1/1997 air brake systemBrakes, All Others4
393.55(c)(2)ABS—all other CMVs manufactured on or after 3/1/1998 air brake systemBrakes, All Others4
393.55(d)(1)ABS—malfunctioning circuit/signal—truck tractor manufactured on or after 3/1/1997, single-unit CMV manufactured on or after 3/1/1998Brakes, All Others4
393.55(d)(2)ABS—malfunctioning indicator to cab of towing CMV manufactured on or after 3/1/2001Brakes, All Others4
393.55(d)(3)No or Defective ABS Malfunction Indicator for towed vehicles on vehicles manufactured after February 2001Brakes, All Others4
393.55(e)ABS—malfunctioning lamps towed CMV manufactured on or after 3/1/1998Brakes, All Others4
393.60Windshield—Obstructed (393.60EWS)Windshield/Glass/Markings1
393.60(b)Windshields requiredWindshield/Glass/Markings1
393.60(c)Damaged or discolored windshieldWindshield/Glass/Markings1
393.60(d)Glazing permits less than 70 percent of lightWindshield/Glass/Markings1
393.61Inadequate or missing truck side windowsWindshield/Glass/Markings1
393.61Inadequate or missing truck side windows (393.61(a))Windshield/Glass/Markings1
393.62(a)No or defective bus emergency exits—Bus manufactured on or after 9/1/1994Windshield/Glass/Markings1
393.62(b)No or defective bus emergency exits—Bus manufactured on or after 9/1/1973 but before 9/1/1994Windshield/Glass/Markings1
393.62(c)No or defective bus emergency exit windows—Bus manufactured before 9/1/1973Windshield/Glass/Markings1
393.62(d)No/defective Safety glass/push-out window—Bus manufactured before 9/1/1973Windshield/Glass/Markings1
393.62(e)No or inadequate bus emergency exit marking—Bus manufactured on or after 9/1/1973Windshield/Glass/Markings1
393.65Fuel system requirementsFuel Systems1
393.65(b)Improper location of fuel systemFuel Systems1
393.65(c)Improper securement of fuel tankFuel Systems1
393.65(f)Improper fuel line protectionFuel Systems1
393.67Fuel tank requirement violationsFuel Systems1
393.67(c)(7)Fuel tank fill pipe cap missingFuel Systems1
393.67(c)(8)Improper fuel tank safety ventFuel Systems1
393.68Compressed natural gas (CNG) fuel container does not conform to regulationsOther Vehicle Defect3
393.70Fifth wheelCoupling Devices3
393.70(a)Defective coupling device—improper trackingCoupling Devices3
393.70(b)Defective/improper fifth wheel assembliesCoupling Devices3
393.70(b)Defective/improper fifth wheel assembly upper half (393.70B1II)Coupling Devices3
393.70(b)(2)Defective fifth wheel locking mechanismCoupling Devices3
393.70(c)Defective coupling devices for full trailerCoupling Devices3
393.70(d)No/improper safety chains/cables for full trailerCoupling Devices3
393.70(d)(8)Improper safety chain attachmentCoupling Devices3
393.71Improper coupling driveaway/tow-away operationCoupling Devices3
393.71(g)Prohibited towing connection/deviceCoupling Devices3
393.71(h)Towbar requirement violationsCoupling Devices3
393.71(h)(10)No/improper safety chains/cables for towbarCoupling Devices3
393.75Tires/tubes (general)Tires8
393.75(a)Flat tire or fabric exposedTires8
393.75(a)(1)Tire—ply or belt material exposedTires8
393.75(a)(2)Tire—tread and/or sidewall separationTires8
393.75(a)(3)Tire—flat and/or audible air leakTires8
393.75(a)(4)Tire—cut exposing ply and/or belt materialTires8
393.75(b)Tire—front tread depth less than 4/32 of inchTires8
393.75(c)Tire—other tread depth less than 2/32 of inchTires8
Start Printed Page 3623
393.75(d)Tire—bus regrooved/recap on front wheelTires8
393.75(e)Tire—regrooved on front wheel of truck/truck-tractorTire vs. Load3
393.75(f)Tire—exceeding weight rating of tireTire vs. Load3
393.75(f)Weight carried exceeds tire load limit (393.75(f)(1))Tire vs. Load3
393.75(h)(1)Tire underinflated (393.75(f)(2))Tire vs. Load3
393.75(h)Tire underinflatedTire vs. Load3
393.76Sleeper berth requirement violationsOther Vehicle Defect3
393.77Defective and/or prohibited heatersOther Vehicle Defect3
393.77(b)(11)Bus heater fuel tank locationOther Vehicle Defect3
393.77(b)(5)Protection of operating controls from tamperingOther Vehicle Defect3
393.78Windshield wipers inoperative/defectiveWindshield/Glass/Markings1
393.79Defroster/Defogger inoperativeWindshield/Glass/Markings1
393.80Failing to equip vehicle with two rear vision mirrorsOther Vehicle Defect3
393.81Horn inoperativeOther Vehicle Defect3
393.82Speedometer inoperative/inadequateOther Vehicle Defect3
393.83(a)Exhaust system locationExhaust Discharge1
393.83(b)Exhaust discharge fuel tank/filler tubeExhaust Discharge1
393.83(c)Improper exhaust—bus (gasoline)Exhaust Discharge1
393.83(d)Improper exhaust—bus (diesel)Exhaust Discharge1
393.83(e)Improper exhaust discharge (not rear of cab)Exhaust Discharge1
393.83(f)Improper exhaust system repair (patch/wrap)Exhaust Discharge1
393.83(g)Exhaust leak under truck cab and/or sleeperExhaust Discharge1
393.83(h)Exhaust system not securely fastenedExhaust Discharge1
393.84Inadequate floor conditionCab, Body, Frame2
393.86No or improper rearend protectionCab, Body, Frame2
393.86(a)(1)Rear impact guards—all trailers/semitrailers manufactured on or after 1/26/98Cab, Body, Frame2
393.86(a)(2)Impact guard width—all trailers/semitrailers manufactured on or after 1/26/98Cab, Body, Frame2
393.86(a)(3)Impact guard height—all trailers/semitrailers manufactured on or after 1/26/98Cab, Body, Frame2
393.86(a)(4)Impact guard rear—all trailers/semitrailers manufactured on or after 1/26/98Cab, Body, Frame2
393.86(a)(5)Cross-sectional vertical height—all trailers/semitrailers manufactured on or after 1/26/98Cab, Body, Frame2
393.86(b)(1)Rear Impact Guards—motor vehicles manufactured after 12/31/52, see exceptionsCab, Body, Frame2
393.87Warning flag required on projecting loadWarning Flags1
393.87(a)Warning flag required on projecting loadWarning Flags1
393.87(b)Improper warning flag placementWarning Flags1
393.88Improperly located television receiverCab, Body, Frame2
393.89Bus driveshaft not properly protectedCab, Body, Frame2
393.90Bus—no or obscure standee lineCab, Body, Frame2
393.91Bus—improper aisle seatsCab, Body, Frame2
393.93(a)Bus—not equipped with seatbeltCab, Body, Frame2
393.93(a)(3)Seats not secured in conformance with FMVSSCab, Body, Frame2
393.93(b)Truck not equipped with seatbeltCab, Body, Frame2
393.95(a)No/discharged/unsecured fire extinguisherEmergency Equipment2
393.95(a)(1)(i)No/discharged/unsecured fire extinguisherEmergency Equipment2
393.95(b)No spare fuses as requiredEmergency Equipment2
393.95(b)No spare fuses as required (393.95(c))Emergency Equipment2
393.95(f)No/insufficient warning devicesEmergency Equipment2
393.95(g)HM—restricted emergency warning deviceEmergency Equipment2
393.100Failure to prevent cargo shiftingGeneral Securement1
393.100(a)Failure to prevent cargo shiftingGeneral Securement1
393.100(b)Leaking/spilling/blowing/falling cargoImproper Load Securement7
393.100(c)Failure to prevent cargo shiftingGeneral Securement1
393.102(a)Improper securement system (tiedown assemblies)Tiedown3
393.102(a)(1)Insufficient means to prevent movementFailure to Prevent Movement3
393.102(a)(1)(i)Insufficient means to prevent forward movementFailure to Prevent Movement3
393.102(a)(1)(ii)Insufficient means to prevent rearward movementFailure to Prevent Movement3
393.102(a)(1)(iii)Insufficient means to prevent lateral movementFailure to Prevent Movement3
393.102(a)(2)Tiedown assembly with inadequate working load limitTiedown3
393.102(b)Insufficient means to prevent vertical movementFailure to Prevent Movement3
393.102(c)No equivalent means of securementImproper Load Securement7
393.104(a)Inadequate/damaged securement device/systemSecurement Device1
393.104(b)Damaged securement system/tiedownsSecurement Device1
393.104(c)Damaged vehicle structures/anchor pointsSecurement Device1
393.104(d)Damaged dunnage/bars/blocking-bracingSecurement Device1
393.104(f)(1)Knotted tiedownTiedown3
Start Printed Page 3624
393.104(f)(2)Use of tiedown with improper repair.Tiedown3
393.104(f)(3)Loose/unfastened tiedown.Tiedown3
393.104(f)(4)No edge protection for tiedowns (393.104F4R)Tiedown3
393.106(a)No/improper front end structure/headerboardSecurement Device1
393.106(b)Cargo not immobilized or securedFailure to Prevent Movement3
393.106(c)(1)No means to prevent cargo from rollingFailure to Prevent Movement3
393.106(c)(2)Cargo without direct contact/prevention from shiftingFailure to Prevent Movement3
393.106(d)Insufficient aggregate working load limitTiedown3
393.110Failing to meet minimum tiedown requirementsGeneral Securement1
393.110(b)Insufficient tiedowns; without headerboard/blockingTiedown3
393.110(c)Insufficient tiedowns; with headerboard/blockingTiedown3
393.110(d)Large/odd-shaped cargo not adequately securedFailure to Prevent Movement3
393.112Tiedown not adjustable by driverSecurement Device1
393.114No/improper front end structureGeneral Securement1
393.114(b)(1)Insufficient height for front-end structureSecurement Device1
393.114(b)(2)Insufficient width for front-end structureSecurement Device1
393.114(d)Front-end structure with large opening(s)Securement Device1
393.116No/improper securement of logsGeneral Securement1
393.116(d)(1)Short, over 1/3 length past structureImproper Load Securement7
393.116(d)(2)Short, insufficient/no tiedownsImproper Load Securement7
393.116(d)(3)Short, tiedowns improperly positionedImproper Load Securement7
393.116(d)(4)Short, no center stakes/high log not securedImproper Load Securement7
393.116(e)Short, length; improper securementImproper Load Securement7
393.118No/improper lumber/building materials. securementGeneral Securement1
393.118(b)Improper placement of bundlesImproper Load Securement7
393.118(d)Insufficient protection against lateral movementFailure to Prevent Movement3
393.118(d)(3)Insufficient/improper arrangement of tiedownsTiedown3
393.120No/improper securement of metal coilsGeneral Securement1
393.120(b)(1)Coil/vertical improper securementImproper Load Securement7
393.120(b)(2)Coils, rows, eyes vertical—improper securementImproper Load Securement7
393.120(c)(1)Coil/eye crosswise improper securementImproper Load Securement7
393.120(c)(2)X-pattern on coil(s) with eyes crosswiseImproper Load Securement7
393.120(d)(1)Coil with eye lengthwise-improper securementImproper Load Securement7
393.120(d)(4)Coils, rows, eyes length—improper securement.Improper Load Securement7
393.120(e)No protection against shifting/tippingFailure to Prevent Movement3
393.122No/improper securement of paper rollsGeneral Securement1
393.122(b)Rolls vertical—improper securementImproper Load Securement7
393.122(c)Rolls vertical/split—improper securementImproper Load Securement7
393.122(d)Rolls vertical/stacked—improper securementImproper Load Securement7
393.122(e)Rolls crosswise—improper securementImproper Load Securement7
393.122(f)Rolls crosswise/stacked load—improperly securedImproper Load Securement7
393.122(g)Rolls length—improper securementImproper Load Securement7
393.122(h)Rolls lengthwise/stacked—improper securementImproper Load Securement7
393.122(i)Improper securement—rolls on flatbed/curtain-sided vehicleImproper Load Securement7
393.124No/improper securement of concrete pipeGeneral Securement1
393.124(b)Insufficient working load limit—concrete pipesTiedown3
393.124(c)Improper blocking of concrete pipeImproper Load Securement7
393.124(d)Improper arrangement of concrete pipeImproper Load Securement7
393.124(e)Improper securement, up to 45 in. diameterImproper Load Securement7
393.124(f)Improper securement, greater than 45 inch diameterImproper Load Securement7
393.126Fail to ensure intermodal container securedGeneral Securement1
393.126(b)Damaged/missing tiedown/securement deviceSecurement Device1
393.126(c)(1)Lower corners of container not on vehicle/structureSecurement Device1
393.126(c)(2)All corners of chassis not securedImproper Load Securement7
393.126(c)(3)Front and rear of container not secured independentlyImproper Load Securement7
393.126(d)(1)Empty container not properly positionedImproper Load Securement7
393.126(d)(2)Empty container, more than 5 foot overhangImproper Load Securement7
393.126(d)(4)Empty container—not properly securedImproper Load Securement7
393.128No/improper securement of vehiclesGeneral Securement1
393.128(b)(1)Vehicle not secured—front and rearImproper Load Securement7
393.128(b)(2)Tiedown(s) not affixed to mounting pointsImproper Load Securement7
393.128(b)(3)Tiedown(s) not over/around wheelsImproper Load Securement7
393.130No/improper heavy vehicle/machinery securementGeneral Securement1
393.130(b)Item not properly prepared for transportImproper Load Securement7
393.130(c)Improper restraint/securement of itemImproper Load Securement7
393.132No/improper securement of crushed vehiclesGeneral Securement1
393.132(b)Prohibited use of synthetic webbingSecurement Device1
393.132(c)Insufficient tiedowns per stack carsTiedown3
393.132(c)(5)Insufficient means to retain loose partsImproper Load Securement7
Start Printed Page 3625
393.134No/improper securement of roll/hook containerGeneral Securement1
393.134(b)(1)No blocking against forward movementFailure to Prevent Movement3
393.134(b)(2)Container not secured to front of vehicleImproper Load Securement7
393.134(b)(3)Rear of container not properly securedImproper Load Securement7
393.136No/improper securement of large bouldersGeneral Securement1
393.136(b)Improper placement/positioning of boulderImproper Load Securement7
393.136(c)(1)Boulder not secured with chainImproper Load Securement7
393.136(d)Improper securement—cubic boulderImproper Load Securement7
393.136(e)Improper securement—non-cubic boulder with stable baseImproper Load Securement7
393.136(f)Improper securement—non-cubic boulder with unstable baseImproper Load Securement7
393.201(a)Frame cracked/loose/sagging/brokenCab, Body, Frame2
393.201(b)Bolts securing cab broken/loose/missingCab, Body, Frame2
393.201(c)Frame rail flange improperly bent/cut/notchedCab, Body, Frame2
393.201(d)Frame accessories improperly attachedCab, Body, Frame2
393.201(e)Prohibited holes drilled in frame rail flangeCab, Body, Frame2
393.203Cab/body parts requirements violationsCab, Body, Frame2
393.203(a)Cab door missing/brokenCab, Body, Frame2
393.203(b)Cab/body improperly secured to frameCab, Body, Frame2
393.203(c)Hood not securely fastenedCab, Body, Frame2
393.203(d)Cab seats not securely mountedCab, Body, Frame2
393.203(e)Cab front bumper missing/unsecured/protrudingCab, Body, Frame2
393.205(a)Wheel/rim cracked or brokenWheels, Studs, Clamps, Etc2
393.205(b)Stud/bolt holes elongated on wheelsWheels, Studs, Clamps, Etc2
393.205(c)Wheel fasteners loose and/or missingWheels, Studs, Clamps, Etc2
393.207(a)Axle positioning parts defective/missingSuspension7
393.207(b)Adjustable axle locking pin missing/disengagedSuspension7
393.207(c)Leaf spring assembly defective/missingSuspension7
393.207(d)Coil spring cracked and/or brokenSuspension7
393.207(e)Torsion bar cracked and/or brokenSuspension7
393.207(f)Air suspension pressure lossSuspension7
393.207(g)No/defective air suspension exhaust controlSuspension7
393.209(a)Steering wheel not secured/brokenSteering Mechanism6
393.209(b)Excessive steering wheel lashSteering Mechanism6
393.209(c)Loose steering columnSteering Mechanism6
393.209(d)Steering system components worn/welded/missingSteering Mechanism6
393.209(e)Power steering violationsSteering Mechanism6
396.1Must have knowledge of and comply with regulationsInspection Reports4
396.3(a)(1)Inspection/repair and maintenance parts and accessoriesWheels, Studs, Clamps, Etc2
396.3(a)(1)Brakes (general) (396.3A1B)Brakes, All Others4
396.3(a)(1)Brake out of adjustment (396.3A1BA)Brakes Out of Adjustment4
396.3(a)(1)Brake-air compressor violation (396.3A1BC)Brakes, All Others4
396.3(a)(1)Brake-defective brake drum (396.3A1BD)Brakes, All Others4
396.3(a)(1)Brake-reserve system pressure loss (396.3A1BL)Brakes, All Others4
396.3(a)(1)Tires (general) (396.3A1T)Tires8
396.5Excessive oil leaksOther Vehicle Defect3
396.5(a)Failing to ensure that vehicle is properly lubricatedOther Vehicle Defect3
396.5(a)Hubs—No visible or measurable lubricant showing in the hub—inner wheel (396.5A-HNLIW)Wheels, Studs, Clamps, Etc2
396.5(a)Hubs—No visible or measurable lubricant showing in the hub—outer wheel (396.5A-HNLOW)Wheels, Studs, Clamps, Etc2
396.5(b)Oil and/or grease leakOther Vehicle Defect3
396.5(b)Hubs—Oil and/or Grease Leaking from hub—inner wheel (396.5B-HLIW)Wheels, Studs, Clamps, Etc2
396.5(b)Hubs—oil and/or Grease Leaking from hub—outer wheel (396.5B-HLOW)Wheels, Studs, Clamps, Etc2
396.5(b)Hubs—Wheel seal leaking—inner wheel (396.5B-HWSLIW)Wheels, Studs, Clamps, Etc2
396.5(b)Hubs—Wheel seal leaking—outer wheel (396.5B-HWSLOW)Wheels, Studs, Clamps, Etc2
396.7Unsafe operations forbiddenOther Vehicle Defect3
396.9(c)(2)Operating an OOS vehicleVehicle Jumping OOS10
396.9(d)(2)Failure to correct defects noted on inspection reportInspection Reports4
396.11No or inadequate driver vehicle inspection reportInspection Reports4
396.13(c)No reviewing driver's signature on Driver Vehicle Inspection Report (DVIR)Inspection Reports4
396.17(c)Operating a CMV without periodic inspectionInspection Reports4
398.5(a)Operating a motor vehicle not in compliance with parts and accessories regulations—migrant workers (398.5)Other Vehicle Defect3
398.7Failure to inspect or maintain motor vehicle to ensure safe and proper operating condition—migrant workersInspection Reports4
399.207Vehicle access requirements violationsCab, Body, Frame2
399.211Inadequate maintenance of driver accessCab, Body, Frame2
Start Printed Page 3626

Table 5—Hazardous Materials Compliance BASIC Violations

49 CFR sectionViolation description shown on driver/vehicle examination report given to CMV driver after inspectionViolation group descriptionViolation severity weight
171.2(a)Failure to comply with HM regulationsHM Other2
171.2(b)Failure to comply with the requirements for HM transportation (including labeling and handling)HM Other2
171.2(c)Representing a package./container for HM not meeting specsMarkings—HM5
171.2(f)Transporting HM not in accordance with this partPackage Integrity—HM8
171.2(g)Cargo tank does not comply with HM RegulationsPackage Integrity—HM8
171.2(k)Representing vehicle with HM, none presentMarkings—HM5
172.200(a)No shipping paper provided by offerorDocumentation—HM3
172.201(a)(1)HM not distinguished from non-HMDocumentation—HM3
172.201(a)(2)HM description not printed legibly in EnglishDocumentation—HM3
172.201(a)(3)HM description contains abbreviation or codeDocumentation—HM3
172.201(a)(4)Additional information not after HM basic descriptionDocumentation—HM3
172.201(c)Failure to list page number of pagesDocumentation—HM3
172.201(d)Emergency Response phone number not listedDocumentation—HM3
172.202(a)(2)Improper shipping name (172.202(a)(1))Documentation—HM3
172.202(a)(3)Improper hazard class (172.202(a)(2))Documentation—HM3
172.202(a)(1)Wrong or no ID number (172.202(a)(3)Documentation—HM3
172.202(a)(4)No packing group listedDocumentation—HM3
172.202(a)(5)Total quantity not listedDocumentation—HM3
172.202(b)Basic description not in proper sequenceDocumentation—HM3
172.202(c)Total quantity improper locationDocumentation—HM3
172.202(e)Non Hazardous Material entered with class or ID#Documentation—HM3
172.203(a)Exemption number not listedDocumentation—HM3
172.203(b)Limited quantity not shownDocumentation—HM3
172.203(c)(1)Hazardous substance entry missingDocumentation—HM3
172.203(c)(2)RQ not on shipping paperDocumentation—HM3
172.203(d)(1)Radionuclide name not on shipping paperDocumentation—HM3
172.203(d)(10)No indication for Highway Route Controlled Quantity of Class 7 “HRCQ” on shipping paperDocumentation—HM3
172.203(d)(2)No RAM physical or chemical formDocumentation—HM3
172.203(d)(3)No RAM activityDocumentation—HM3
172.203(d)(4)No RAM label categoryDocumentation—HM3
172.203(d)(5)No RAM transport indexDocumentation—HM3
172.203(d)(6)No fissile radioactive entryDocumentation—HM3
172.203(d)(7)No DOE/NRC package approval notationDocumentation—HM3
172.203(d)(8)Export package or foreign made package not marked with IAEA CertificateDocumentation—HM3
172.203(d)(9)No Exclusive Use notationDocumentation—HM3
172.203(e)No empty packaging notedDocumentation—HM3
172.203(h)(1)No qt/nqt for anhydrous ammoniaDocumentation—HM3
172.203(h)(2)No notation for QT/NQT for Liquified Petroleum GasDocumentation—HM3
172.203(k)No technical name for nos entryDocumentation—HM3
172.203(m)No Poison Inhalation Hazard and/or Hazard ZoneDocumentation—HM3
172.203(n)No “hot” on shipping paperDocumentation—HM3
172.203(o)No temperature controls noted for Class 4.1 or Class 5.2Documentation—HM3
172.205Hazardous waste manifest not as requiredDocumentation—HM3
172.300Failing to comply with marking requirementsMarkings—HM5
172.301Non-bulk package marking—generalMarkings—HM5
172.301(a)No ID number on side/ends of non-bulk package—large quantity of single HMMarkings—HM5
172.301(a)(1)No proper shipping name and/or ID# marking on non-bulkMarkings—HM5
172.301(b)No technical name on non-bulkDocumentation—HM3
172.301(c)No special permit number on non-bulk packageDocumentation—HM3
172.301(d)No consignee/consignor on non-bulkDocumentation—HM3
172.302Marking requirements bulk packagingsMarkings—HM5
172.302(a)No ID number (portable and cargo tank)Markings—HM5
172.302(b)Bulk package marking incorrect sizeMarkings—HM5
172.302(c)No special permit number on bulk packageDocumentation—HM3
172.303(a)Prohibited HM marking on packageMarkings—HM5
172.304(a)(1)Package marking not durable, English, or printMarkings—HM5
172.304(a)(2)Marking not on sharply contrasting colorMarkings—HM5
172.304(a)(3)Marking obscured by label or attachmentsMarkings—HM5
172.304(a)(4)Marking not away from other markingMarkings—HM5
172.308(a)Package marked with unauthorized abbreviationMarkings—HM5
172.310(a)No gross weight on radioactive materials package greater than 50 KGMarkings—HM5
172.310(b)Radioactive materials package not marked “Type A or B”Markings—HM5
172.312(a)(2)No package orientation arrowsCargo Protection—HM4
172.312(b)Prohibited use of orientation arrowsCargo Protection—HM4
172.313(a)No “inhalation hazard” on packageMarkings—HM5
172.313(b)No “poison” on non-bulk plastic packageMarkings—HM5
Start Printed Page 3627
172.316(a)Other regulated material non-bulk package not markedMarkings—HM5
172.320(a)Class 1 package not marked with ex-numberMarkings—HM5
172.322(b)No marine pollutant marking on bulk packagingMarkings—HM5
172.324Non-bulk hazardous substance not markedMarkings—HM5
172.325(a)No “hot” marking for bulk elevated temperature (172.325)Markings—HM5
172.325(a)Elevated temperature not marked “Hot”Markings—HM5
172.325(b)Improperly marked molten aluminum/sulphurMarkings—HM5
172.326(a)Portable tank not marked with proper shipping name or ID#Markings—HM5
172.326(b)No portable tank owner or lessee markingMarkings—HM5
172.326(c)(1)No ID number marking on vehicle carrying portable tankMarkings—HM5
172.326(c)(2)Shipper failed to provide ID number to carrierMarkings—HM5
172.328No ID number displayed on a cargo tankMarkings—HM5
172.328(a)Shipper failed to provide or affix ID number for cargo tankMarkings—HM5
172.328(b)Cargo tank not marked for class 2Markings—HM5
172.328(c)No quenched and tempered steel (QT)/other than quenched and tempered steel (NQT) marked on cargo tank (MC 330/331)Markings—HM5
172.328(d)Fail to mark manual remote shutoff deviceMarkings—HM5
172.330(a)(2)Tank car tank (non cylinder) not marked as requiredMarkings—HM5
172.330(b)Motor vehicle with tank not markedMarkings—HM5
172.331Markings for other bulk packagesMarkings—HM5
172.332Required ID markings displayedMarkings—HM5
172.334Prohibited ID number markingMarkings—HM5
172.334(a)ID # displayed on Class 7/Class 1/Dangerous or Subsidiary placardMarkings—HM5
172.336(b)ID numbers not properly displayedMarkings—HM5
172.336(c)(1)Failing to display ID numbers on compartment cargo tank in sequenceMarkings—HM5
172.338Carrier failed to replace missing ID numberMarkings—HM5
172.400Labeling requirementsMarkings—HM5
172.400(a)Package/containment not labeled as requiredMarkings—HM5
172.401Prohibited labelingMarkings—HM5
172.402Failing to affix additional labels when requiredMarkings—HM5
172.402(a)No label for subsidiary hazardMarkings—HM5
172.402(b)Display of class number on labelMarkings—HM5
172.402(d)Subsidiary labeling for radioactive materialsMarkings—HM5
172.402(e)Subsidiary labeling for class 1 (explosive) materialsMarkings—HM5
172.403(a)Radioactive material label requirementMarkings—HM5
172.403(f)Radioactive material package-2 labels on opposite sidesMarkings—HM5
172.403(g)Failed to label radioactive material properlyMarkings—HM5
172.403(g)(2)Class 7 label—no activity/activity not in SI unitsMarkings—HM5
172.404(a)Mixed package not properly labeledMarkings—HM5
172.404(b)Failed to properly label consolidated packageMarkings—HM5
172.406(a)(1)Label placement not as requiredMarkings—HM5
172.406(c)Multiple label placement not as requiredMarkings—HM5
172.406(d)Label not on contrasting background or no borderMarkings—HM5
172.406(e)Failed to display duplicate label as requiredMarkings—HM5
172.406(f)Label obscured by marking or attachmentMarkings—HM5
172.502(a)(1)Prohibited placardingMarkings—HM5
172.502(a)(2)Sign or device could be confused with HM placardMarkings—HM5
172.504Placards not in table 1 or 2Markings—HM5
172.504(a)Vehicle not placarded as requiredMarkings—HM5
172.504(b)Dangerous placard violationMarkings—HM5
172.505(a)No placard for poison inhalation hazardMarkings—HM5
172.505(b)Not placarded for RAM and Corrosive when requiredMarkings—HM5
172.505(c)Placard for subsidiary dangerous when wetMarkings—HM5
172.506(a)Failed to provide placards shipperMarkings—HM5
172.506(a)(1)Placards not affixed to vehicleMarkings—HM5
172.507Not placardarded for RAM highway route controlled quantityMarkings—HM5
172.512(a)Freight container not placardedMarkings—HM5
172.514(a)Bulk package offered without placardMarkings—HM5
172.514(b)Bulk package with residue of HM not properly placardedMarkings—HM5
172.516(a)Placard not visible from direction it facesMarkings—HM5
172.516(c)(1)Placard not securely affixed or attachedMarkings—HM5
172.516(c)(2)Placard not clear of appurtenanceMarkings—HM5
172.516(c)(4)Placard improper locationMarkings—HM5
172.516(c)(5)Placard not reading horizontallyMarkings—HM5
172.516(c)(6)Placard damaged, deteriorated, or obscuredMarkings—HM5
172.516(c)(7)Placard not on contrasting background or borderMarkings—HM5
172.519Placard does not meet specificationsMarkings—HM5
172.600(c)Emergency Response (ER) information not availableDocumentation—HM3
172.602(a)Emergency response information missingDocumentation—HM3
172.602(b)Form and manner of emergency response informationDocumentation—HM3
Start Printed Page 3628
172.602(c)(1)Maintenance/accessibility of emergency response informationDocumentation—HM3
172.604(a)Failing to provide an emergency response phone numberDocumentation—HM3
173.24(a)Non-bulk package mixed contents requirementsCargo Protection—HM4
173.24(b)Failed to meet general package requirementsLoad Securement—HM10
173.24(b)(1)Release of HM from packageLoad Securement—HM10
173.24(b)Bulk package outage or filling limit requirementsLoad Securement—HM10
173.24b(d)(2)Exceed max weight of rating on spec plateLoad Securement—HM10
173.24(c)Unauthorized packagingLoad Securement—HM10
173.24(f)(1)Closures for packagings must not be open or leakingLoad Securement—HM10
173.25(a)Failed to meet overpack conditionsMarkings—HM5
173.25(c)Failure to label and package poison properly, when transported with edible materialMarkings—HM5
173.29(a)Empty package improper transportationCargo Protection—HM4
173.30Loading/unloading transport vehiclesCargo Protection—HM4
173.32(h)(3)IM101/102 bottom outlets prohibitedFire Hazard—HM6
173.32(h)(3)(i)IM101/102 bottom outlets authorizedFire Hazard—HM6
173.33(a)Cargo tank general requirementsCargo Protection—HM4
173.33(b)HM in cargo tank which had dangerous reaction with cargo tankCargo Protection—HM4
173.33(c)(2)Cargo tank not marked with design or maximum allowable working pressure (MAWP)Cargo Protection—HM4
173.35(a)Intermediate bulk container requirementsPackage Integrity—HM8
173.35(d)Liquid filled IBC with Ullage over 98%Load Securement—HM10
173.35(f)(2)Intermediate bulk container (IBC) not secured to or within vehicleLoad Securement—HM10
173.40General packages requirements for poisons in cylindersHM Other2
173.54Forbidden explosives, offering or transportingFire Hazard—HM6
173.60General packaging requirements for explosivesHM Other2
173.315(a)Cargo or portable tank class 2 exceeds maximum filling densityLoad Securement—HM10
173.315(j)(3)Residential gas tank not secure in transportFire Hazard—HM6
173.318(b)(10)Fail to mark inlet, outlet, pressure relief device, or pressure control valve of cryogenic tanksPackage Integrity—HM8
173.318(g)No or Improper One Way Travel Time (OWTT) marking on cryogenic cargo tankMarkings—HM5
173.412General Type A package failing to meet additional design requirementsPackage Integrity—HM8
173.421(a)Transporting limited quantity-radioactive material exceeds 0.5 millirem/hourCargo Protection—HM4
173.427(a)(6)(iv)No instructions for exclusive use packaging-low specific activityCargo Protection—HM4
173.427(a)(6)(vi)Exclusive use low specific activity (LSA) radioactive material not marked “Radioactive-LSA”Markings—HM5
173.427(a)(6)(iv)No instructions for exclusive use packaging-low specific activityCargo Protection—HM4
173.427(a)(vi)Exclusive use low specific activity (LSA) radioactive material not marked “Radioactive-LSA”Markings—HM5
173.431Exceeded activity limits Type A or Type B packageLoad Securement—HM10
173.441(a)Exceeding radiation level limitations allowed for transportCargo Protection—HM4
173.441(b)Exceeding radiation level allowed for transport of RAM under exclusive use provisionsLoad Securement—HM10
173.442(b)(1)External temperature of package exceeds 50 degrees Celsius (122 degrees F)Cargo Protection—HM4
173.442(b)(2)External temperature of package exceeds 85 degrees Celsius (185 degrees F)Cargo Protection—HM4
173.443(a)Radioactive contamination exceeds limitsLoad Securement—HM10
173.447RAM transport storage violationCargo Protection—HM4
173.448General RAM transport requirementsCargo Protection—HM4
177.801Accepting/transporting HM not prepared properlyHM Other2
177.804Failure to comply with FMCSR 49 CFR part 383 and 49 CFR parts 390 through 397HM Other2
177.817Shipping papers requiredDocumentation—HM3
177.817(a)No shipping papers (carrier)Documentation—HM3
177.817(b)Shipper certification missing (when required)Documentation—HM3
177.817(e)Shipping paper accessibilityDocumentation—HM3
177.823(a)No placards/markings when requiredMarkings—HM5
177.834Load securement of different HM packagesFire Hazard—HM6
177.834(a)Package not secure in vehicleLoad Securement—HM10
177.834(b)Package not loaded according to orientation marksCargo Protection—HM4
177.834(c)Smoking while loading or unloadingFire Hazard—HM6
177.834(f)Using a tool likely to cause damage to the closure of any package or containerLoad Securement—HM10
177.834(i)Attendance of cargo tank—(load or unload)Cargo Protection—HM4
177.834(j)Manholes and valves not closed or leak freeCargo Protection—HM4
177.834(m)(1)Securing specification 106a or 110a tanksCargo Protection—HM4
177.834(n)Improper loading-specification 56, 57, IM101, and IM102Fire Hazard—HM6
Start Printed Page 3629
177.835Improper transportation of explosives (Class 1)Fire Hazard—HM6
177.835(a)Loading/Unloading Class 1 with engine runningFire Hazard—HM6
177.835(c)Transporting Class 1 in combination vehiclesFire Hazard—HM6
177.835(j)Transfer of Class 1 materials en routeFire Hazard—HM6
177.837Improper transporting of Class 3 HMFire Hazard—HM6
177.837(c)Cargo tanks not properly bonded/groundedCargo Protection—HM4
177.837(d)Improper unloading of combustible liquidsCargo Protection—HM4
177.838Improper transport of class 4, 5 or division 4.2Fire Hazard—HM6
177.839Improper transportation of Class 8 HMCargo Protection—HM4
177.840Improper transportation of Class 2 HMFire Hazard—HM6
177.840(g)Discharge valve not closed in transit class 2Cargo Protection—HM4
177.840(o)Fail to test off-truck remote shutoff deviceCargo Protection—HM4
177.840(s)Fail to possess remote shutoff when unloadingCargo Protection—HM4
177.841Improper transportation of Division 6.1 or Division 2.3 HMFire Hazard—HM6
177.841(e)Poison label loaded with foodstuffsHM Other2
177.842(a)Total transport index exceeds 50- non-exclusive useHM Other2
177.842(b)Distance from package to person-radioactive materialHM Other2
177.842(d)Blocking and bracing of radioactive material packagesHM Other2
177.848(d)Prohibited load/transport/storage combinationFire Hazard—HM6
177.848(f)Class 1 load separation or segregationHM Other2
177.870(b)Transporting unauthorized HM in a passenger-carrying vehicleLoad Securement—HM10
177.870(c)Prohibited HM on passenger carrying vehicleLoad Securement—HM10
178.245-41DOT51 integrity and securementPackage Integrity—HM8
178.245-51DOT51 valve protectionPackage Integrity—HM8
178.245-6(a)1DOT51 name plate Markings—HMPackage Integrity—HM8
178.245-6(b)1Tank outlets not markedPackage Integrity—HM8
178.251-41DOT 56/57 integrity and securementPackage Integrity—HM8
178.251-7(b)1DOT 56/57 spec Markings—HMPackage Integrity—HM8
178.255-14DOT 60 ID platePackage Integrity—HM8
178.255-4DOT 60 manholePackage Integrity—HM8
178.255-71DOT 60 valve protectionPackage Integrity—HM8
178.270-11IM101/102 general designPackage Integrity—HM8
178.270-11(d)(1)1IM101/102 pressure reliefPackage Integrity—HM8
178.270-141IM101/102 spec platePackage Integrity—HM8
178.270-41Structural integrityPackage Integrity—HM8
178.270-61IM101/102 framesPackage Integrity—HM8
178.270-81IM101/102 valve protectionPackage Integrity—HM8
178.270-91IM101/102 manholesPackage Integrity—HM8
178.336-1Protecting of fittings MC330Package Integrity—HM8
178.336-13Anchoring of tank MC330Package Integrity—HM8
178.336-17Metal ID plate marking MC330Package Integrity—HM8
178.336-17(a)Certification plate MC330Package Integrity—HM8
178.336-9(a)Safety relief devices MC330Package Integrity—HM8
178.336-9(c)Marking of inlets/outlets MC330Package Integrity—HM8
178.337-10(a)Protection of fittings MC331Package Integrity—HM8
178.337-11(a)Internal valve MC331 (178.337-11(a)(2))Package Integrity—HM8
178.337-13MC331 supports and anchoringPackage Integrity—HM8
178.337-17(a)Metal ID plate missing MC331Package Integrity—HM8
178.337-8(a)Outlets general requirements MC331Package Integrity—HM8
178.337-8(a)(2)Outlets MC331Package Integrity—HM8
178.337-8(a)(3)Internal or back flow valve MC331Package Integrity—HM8
178.337-8(a)(4)(i)Remote closure device greater than 3500 gallons MC331Package Integrity—HM8
178.337-8(a)(4)(ii)Remote closure device less than 3500 gallons MC331Package Integrity—HM8
178.337-9Pressure relief devices MC331Package Integrity—HM8
178.337-9(c)Marking inlets/outlets MC331Package Integrity—HM8
178.338-10(a)Protection of fittings MC338Package Integrity—HM8
178.338-10(c)Rear end protection MC338Package Integrity—HM8
178.338-11(b)Manual shutoff valve MC338Package Integrity—HM8
178.338-12Shear section MC338Package Integrity—HM8
178.338-13Supports and anchoring MC338Package Integrity—HM8
178.338-18(a)Name plate/Specification plate missing MC338Package Integrity—HM8
178.338-18(b)Specification plate missing MC338Package Integrity—HM8
178.338-6Manhole MC338Package Integrity—HM8
178.338-8Pressure relief devices MC338Package Integrity—HM8
178.340-10(b) 2MC306/307/312 metal certification plate missingPackage Integrity—HM8
178.340-62MC306/307/312 supports and anchoringPackage Integrity—HM8
178.340-7(a)2MC306/307/312 ring stiffenersPackage Integrity—HM8
178.340-7(c)2MC306/307/312 double bulkhead drainPackage Integrity—HM8
178.340-7(d)(2)2MC306/307/312 ring stiffener drain holePackage Integrity—HM8
Start Printed Page 3630
178.340-8(a)2MC306/307/312 appurtenances attachmentPackage Integrity—HM8
178.340-8(b)2MC306/307/312 rearend protectionPackage Integrity—HM8
178.340-8(c)2MC306/307/312 overturn protectionPackage Integrity—HM8
178.340-8(d)2MC306/307/312 piping protectionPackage Integrity—HM8
178.340-8(d)(1)2MC306/307/312 piping protectionPackage Integrity—HM8
178.340-8(d)(2)2MC306/307/312 minimum road clearancePackage Integrity—HM8
178.341-3(a)2MC306 no manhole closurePackage Integrity—HM8
178.341-42MC306 ventingPackage Integrity—HM8
178.341-4(d)(1)2MC306 inadequate emergency ventingPackage Integrity—HM8
178.341-4(d)(2)2MC306 pressure activated ventsPackage Integrity—HM8
178.341-4(d)(3)2MC306 no fusible ventingPackage Integrity—HM8
178.341-5(a)2MC306 internal valvesPackage Integrity—HM8
178.341-5(a)(1)2MC306 heat actuated safetyPackage Integrity—HM8
178.341-5(a)(2)2MC306 remote control shutoffPackage Integrity—HM8
178.342-32MC307 manhole closurePackage Integrity—HM8
178.342-42MC307 ventingPackage Integrity—HM8
178.342-4(b)2Inadequate venting capacityPackage Integrity—HM8
178.342-5(a)2MC307 internal valvePackage Integrity—HM8
178.342-5(a)(1)2MC307 heat actuated safetyPackage Integrity—HM8
178.342-5(a)(2)2MC307 remote control shutoffPackage Integrity—HM8
178.343-32Manhole closure MC312Package Integrity—HM8
178.343-42Venting MC312 (show calculations)Package Integrity—HM8
178.343-5(a)2MC312 top outlet and valvePackage Integrity—HM8
178.343-5(b)(1)2MC312 bottom valve/piping protectionPackage Integrity—HM8
178.345-1DOT406/407/412 pressure reliefPackage Integrity—HM8
178.345-11(b)DOT406/407/412 tank valvesPackage Integrity—HM8
178.345-11(b)(1)DOT406/407/412 remote controlPackage Integrity—HM8
178.345-11(b)(1)(i)DOT406/407/412 remote controlPackage Integrity—HM8
178.345-14(b)DOT406/407/412 name platePackage Integrity—HM8
178.345-14(c)DOT406/407/412 specification platePackage Integrity—HM8
178.345-1(i)(2)DOT 406, 407, 412 Obstructed double bulkhead drain/ventPackage Integrity—HM8
178.345-5(d)DOT406/407/412 manhole securementPackage Integrity—HM8
178.345-5(e)DOT406/407/412 manhole markingPackage Integrity—HM8
178.345-6DOT406/407/412 supports and anchoringPackage Integrity—HM8
178.345-7(d)(4)DOT406/407/412 ring stiffener drainPackage Integrity—HM8
178.345-8(a)DOT406/407/412 accident protectionPackage Integrity—HM8
178.345-8(a)(5)DOT406/407/412 minimum road clearancePackage Integrity—HM8
178.345-8(b)DOT406/407/412 bottom damage protectionPackage Integrity—HM8
178.345-8(c)DOT406/407/412 rollover damage protectionPackage Integrity—HM8
178.345-8(d)DOT406/407/412 rear end protectionPackage Integrity—HM8
178.703(a)Intermediate bulk container (IBC) manufacturer Markings—HMPackage Integrity—HM8
178.703(b)Intermediate bulk container additional Markings—HMPackage Integrity—HM8
178.704(e)Intermediate bulk container bottom discharge valve protectionPackage Integrity—HM8
179.300-12DOT106/110aw protection of fittingsPackage Integrity—HM8
179.300-13DOT106/110aw venting and valvesPackage Integrity—HM8
179.300-15DOT106/110aw safety relief devicesPackage Integrity—HM8
179.300-18DOT106/110aw stamping of tanksPackage Integrity—HM8
180.205(c)Periodic re-qualification of cylindersPackage Testing—HM7
180.213(d)Re-qualification Markings—HMPackage Testing—HM7
180.352(b)Intermediate bulk container retest or inspectionPackage Testing—HM7
180.352(d)IBC retest date markingPackage Testing—HM7
180.352(f)IBC retest date marking (180.352(e))Package Testing—HM7
180.405(b)Cargo tank specificationsPackage Testing—HM7
180.405(j)Certification withdrawal (failed to remove/cover/obliterate spec plate)Package Testing—HM7
180.407(a)(1)Cargo tank periodic test and inspectionPackage Testing—HM7
180.407(c)Failing to periodically test and inspect cargo tankPackage Testing—HM7
180.415(b)Cargo tank test or inspection Markings—HMPackage Testing—HM7
180.605Periodic testing of portable tanksPackage Testing—HM7
180.605(k)Test date markingPackage Testing—HM7
385.403No HM Safety PermitDocumentation—HM3
397.1(a)Driver/carrier must obey part 397HM Other2
397.1(b)Failing to require employees to know/obey part 397HM Other2
397.2Must comply with rules in parts 390-397-transporting HMHM Other2
397.5(a)Unattended explosives 1.1/1.2/1.3Fire Hazard—HM6
397.5(c)Unattended hazmat vehicleCargo Protection—HM4
397.7(a)Improperly parked explosives vehicleFire Hazard—HM6
397.7(b)Improperly parked HM vehicleFire Hazard—HM6
397.11(a)HM vehicle operated near open fireFire Hazard—HM6
397.11(b)HM vehicle parked within 300 feet of fireFire Hazard—HM6
Start Printed Page 3631
397.15HM vehicle fueling violationFire Hazard—HM6
397.17No tire examination on HM vehicleHM Other2
397.19No instructions/documents when transporting Division 1.1/1.2/1.3 (explosive) materialsDocumentation—HM3
397.19(c)Required documents not in possession-explosive materialsDocumentation—HM3
397.67HM vehicle routing violation (non-radioactive materials)HM Route1
397.101(b)Radioactive materials vehicle not on preferred routeHM Route1
397.101(d)No or incomplete route plan-radioactive materialsHM Route1
397.101(e)(2)Driver not in possession of training certificateHM Route1
397.101(e)(3)Driver not in possession of written route planHM Route1
Citations marked with a (1) in this table 5 may be found at 49 CFR part 178 (revised as of October 1, 1965) and citations marked with a (2) may be found at 49 CFR part 178 (revised as of October 1, 1967).
Start Part

PART 386—RULES OF PRACTICE FOR MOTOR CARRIER, INTERMODAL EQUIPMENT PROVIDER, BROKER, FREIGHT FORWARDER, AND HAZARDOUS MATERIALS PROCEEDINGS

End Part Start Amendment Part

50. The authority citation for part 386 continues to read as follows:

End Amendment Part Start Authority

Authority: 49 U.S.C. 113, chapters 5, 51, 59, 131-141, 145-149, 311, 313, and 315; 49 U.S.C. 5123; Sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701 note); Sec. 217, Pub. L. 105-159, 113 Stat. 1748, 1767; Sec. 206, Pub. L. 106-159, 113 Stat. 1763; subtitle B, title IV of Pub. L. 109-59; and 49 CFR 1.81 and 1.87.

End Authority Start Amendment Part

51. Amend appendix B to part 386 by revising paragraph (f) and adding paragraph (j) to read as follows:

End Amendment Part

Appendix B to Part 386—Penalty Schedule; Violations and Monetary Penalties

* * * * *

(f) Operating after being declared unfit by assignment of a final unfit safety fitness determination. (1) A motor carrier operating a commercial motor vehicle in interstate commerce or intrastate commerce that affects interstate commerce (except owners or operators of commercial motor vehicles designed or used to transport hazardous materials for which placarding of a motor vehicle is required under regulations prescribed under 49 U.S.C. chapter 51) is subject, after being ordered out-of-service because of receiving a final unfit safety fitness determination, to a civil penalty of not more than $25,000 (49 CFR 385.13). Each day the transportation continues in violation of a final unfit safety fitness determination constitutes a separate offense.

(2) A motor carrier operating a commercial motor vehicle designed or used to transport hazardous materials for which placarding of a motor vehicle is required under regulations prescribed under 49 U.S.C. chapter 51 is subject, after being ordered out-of-service because of receiving a final unfit safety fitness determination, to a civil penalty of not more than $75,000 for each offense. If the violation results in death, serious illness, or severe injury to any person or in substantial destruction of property, the civil penalty may be increased to not more than $175,000 for each offense. Each day the transportation continues in violation of a final unfit safety fitness determination constitutes a separate offense.

* * * * *

(j) Violations considered for penalty assessment. The violations listed in the table in this paragraph (j) are violations that the Agency may take into account for purposes of section 222 of the Motor Carrier Safety Improvement Act of 1999, Public Law 106-159, 49 U.S.C. 521 note (“Minimum and Maximum Assessments”).

Table to Paragraph (j) of Appendix B to Part 386—Minimum and Maximum Penalty Regulations

49 CFR 171.15Carrier failing to give immediate telephone notice of an incident involving HM.
49 CFR 171.16Carrier failing to make a written report of an incident involving HM.
49 CFR 172.313(a)Accepting for transportation or transporting a package containing a poisonous-by-inhalation material that is not marked with the words “Inhalation Hazard.“
49 CFR 172.704(a)(4)Failing to provide security awareness training.
49 CFR 172.704(a)(5)Failing to provide in-depth security awareness training.
49 CFR 172.800(b)Transporting HM without a security plan.
49 CFR 172.800(b)Transporting HM without a security plan that conforms to Subpart I requirements.
49 CFR 172.800(b)Failure to adhere to a required security plan.
49 CFR 172.802(b)Failure to make copies of security plan available to HM employees.
49 CFR 173.24(b)(1)Accepting for transportation or transporting a package that has an identifiable release of a HM to the environment.
49 CFR 173.24b(d)(2)Loading bulk packaging (cargo tank) with an HM which exceeds the maximum weight of lading marked on the specification plate.
49 CFR 173.33(a)(1)Offering or accepting a HM for transportation in an unauthorized cargo tank.
49 CFR 173.33(a)(2)Loading or accepting for transportation two or more materials in a cargo tank motor vehicle which if mixed results in an unsafe condition.
49 CFR 173.33(b)(1)Loading HM in a cargo tank motor would have a dangerous reaction when in contact with the tank.
49 CFR 173.421(a)Accepting for transportation or transporting a Class 7 (radioactive) material described, marked, and packaged as a limited quantity when the radiation level on the surface of the package exceeds 0.005mSv/hour (0.5 mrem/hour).
49 CFR 173.431(a)Accepting for transportation or transporting in a Type A packaging a greater quantity of Class 7 (radioactive) material than authorized.
49 CFR 173.431(b)Accepting for transportation or transporting in a Type B packaging a greater quantity of Class 7 (radioactive) material than authorized.
49 CFR 173.441(a)Accepting for transportation or transporting a package containing Class 7 (radioactive) material with external radiation exceeding allowable limits.
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49 CFR 173.442(b)Accepting for transportation or transporting a package containing Class 7 (radioactive) material when the temperature of the accessible external surface of the loaded package exceeds 50 degrees C (122 degrees F) in other than an exclusive use shipment, or 85 degrees C (185 degrees F) in an exclusive use shipment.
49 CFR 173.443(a)Accepting for transportation or transporting a package containing Class 7 (radioactive) material with removable contamination on the external surfaces of the package in excess of permissible limits.
49 CFR 177.800(c)Failing to instruct a category of employees in HM regulations.
49 CFR 177.817(a)Transporting a shipment of HM not accompanied by a properly prepared shipping paper.
49 CFR 177.817(e)Failing to maintain proper accessibility of shipping papers.
49 CFR 177.823(a)Moving a transport vehicle containing HM that is not properly marked or placarded.
49 CFR 177.834(i)Loading or unloading a cargo tank without a qualified person in attendance.
49 CFR 177.835(a)Loading or unloading a Class 1 (explosive) material with the engine running.
49 CFR 177.835(j)Transferring Division 1.1, 1.2, or 1.3 (explosive) materials between containers or motor vehicles when not permitted.
49 CFR 177.835(c)Accepting for transportation or transporting Division 1.1, 1.2, or 1.3 (explosive) materials in a motor vehicle or combination of vehicles that is not permitted.
49 CFR 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 unless an exception in § 177.841(e)(1)(i) or (ii) is met.
49 CFR 177.848(d)Failing to store, Load, or transport HM in accordance with the segregation table.
49 CFR 180.407(a)Transporting a shipment of HM in cargo tank that has not been inspected or retested in accordance with § 180.407.
49 CFR 180.415Failing to mark a cargo tank which passed an inspection or test required by § 180.407.
49 CFR 180.417(a)(1)Failing to retain cargo tank manufacturer's data report certificate and related papers, as required.
49 CFR 180.417(a)(2))Failing to retain copies of cargo tank manufacturer's certificate and related papers (or alternative report) as required.
49 CFR 382.115(a)Failing to implement an alcohol and/or controlled substances testing program (domestic motor carrier).
49 CFR 382.115(b)Failing to implement an alcohol and/or controlled substances testing program (foreign motor carrier).
49 CFR 382.201Using a driver known to have an alcohol concentration of 0.04 or greater.
49 CFR 382.211Using a driver who has refused to submit to an alcohol or controlled substances test required under part 382.
49 CFR 382.213(b)Using a driver known to have used a controlled substance.
49 CFR 382.215Using a driver known to have tested positive for a controlled substance.
49 CFR 382.301(a)Using a driver before the motor carrier has received a negative pre-employment controlled substance test result.
49 CFR 382.303(a)Failing to conduct post-accident testing on driver for alcohol.
49 CFR 382.303(b)Failing to conduct post-accident testing on driver for controlled substances.
49 CFR 382.305Failing to implement a random controlled substances and/or an alcohol testing program.
49 CFR 382.305(b)(1)Failing to conduct random alcohol testing at an annual rate of not less than the applicable annual rate of the average number of driver positions.
49 CFR 382.305(b)(2)Failing to conduct random controlled substances testing at an annual rate of not less than the applicable annual rate of the average number of driver positions.
49 CFR 382.309Using a driver without a return to duty test.
49 CFR 382.503Allowing a driver to perform safety sensitive function, after engaging in conduct prohibited by subpart B of part 382, without being evaluated by substance abuse professional, as required by § 382.605.
49 CFR 382.505(a)Using a driver within 24 hours after the driver was found to have an alcohol concentration of 0.02 or greater but less than 0.04.
49 CFR 382.605Failing to subject a driver who has been identified as needing assistance to at least six unannounced follow-up alcohol and/or controlled substance tests in the first 12 months following the driver's return to duty.
49 CFR 383.23(a)Operating a CMV without a valid CDL.
49 CFR 383.3(a)Using a driver who does not possess a valid CDL (removed knowingly).
49 CFR 383.37(a)Knowingly allowing, requiring, permitting, or authorizing an employee who does not have a current CLP or CDL, who does not have a CLP or CDL with the proper class or endorsements, or who operates a CMV in violation of any restriction on the CLP or CDL to operate a CMV.
49 CFR 383.37(b)Knowingly allowing, requiring, permitting, or authorizing an employee with a CDL that is suspended, revoked, or canceled by a State or who is disqualified to operate a CMV.
49 CFR 383.51(a)Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a CMV.
49 CFR 387.31(d)Failing to maintain at the principal place of business required proof of financial responsibility for passenger carrying vehicles.
49 CFR 387.7(d)Failing to maintain at the principal place of business required proof of financial responsibility.
49 CFR 390.15(b)(2)Failing to maintain copies of all accident reports required by State or other governmental entities or insurers.
49 CFR 390.35Making, or causing to make fraudulent or intentionally false statements or records and/or reproducing fraudulent records.
49 CFR 391.11(b)(4)Using a physically unqualified driver.
49 CFR 391.11(b)(5)Using a driver without a currently valid motor vehicle operator's license or permit.
49 CFR 391.15(a)Using a disqualified driver.
49 CFR 391.23(a)Failing to investigate a driver's background.
49 CFR 391.45(a)Using a driver not medically examined and certified.
49 CFR 391.45(b)(1)Using a driver not medically examined and certified during the preceding 24 months.
49 CFR 391.51(a)Failing to maintain driver qualification file on each driver employed.
49 CFR 391.51(b)(2)Failing to maintain inquiries into driver's driving record in driver's qualification file.
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49 CFR 391.51(b)(7)Failing to maintain medical examiner's certificate in driver's qualification file.
49 CFR 392.2Operating a motor vehicle not in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated.
49 CFR 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.
49 CFR 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.
49 CFR 392.5(b)(2)Requiring or permitting a driver who shows evidence of having consumed an intoxicating beverage within 4 hours to operate a motor vehicle.
49 CFR 392.6Scheduling a run which would necessitate the vehicle being operated at speeds in excess of those prescribed.
49 CFR 392.9(a)(1)Requiring or permitting a driver to drive without the vehicle's cargo being properly distributed and adequately secured.
49 CFR 395.1(h)(1)(i)Requiring or permitting a property-carrying CMV driver to drive more than 15 hours (Driving in Alaska).
49 CFR 395.1(h)(1)(ii)Requiring or permitting a property-carrying CMV driver to drive after having been on duty 20 hours (Driving in Alaska).
49 CFR 395.1(h)(1)(iii)Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 70 hours in 7 consecutive days (Driving in Alaska).
49 CFR 395.1(h)(1)(iv)Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 80 hours in 8 consecutive days (Driving in Alaska).
49 CFR 395.1(h)(2)(i)Requiring or permitting a passenger-carrying CMV driver to drive more than 15 hours (Driving in Alaska).
49 CFR 395.1(h)(2)(ii)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty 20 hours (Driving in Alaska).
49 CFR 395.1(h)(2)(iii)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 70 hours in 7 consecutive days (Driving in Alaska).
49 CFR 395.1(h)(2)(iv)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 80 hours in 8 consecutive days (Driving in Alaska).
49 CFR 395.1(o)Requiring or permitting a property-carrying CMV driver to drive after having been on duty 16 consecutive hours.
49 CFR 395.3(a)(1)Requiring or permitting a property-carrying CMV driver to drive without taking an off-duty period of at least 11 consecutive hours prior to driving.
49 CFR 395.3(a)(2)Requiring or permitting a property-carrying CMV driver to drive after the end of the 14th hour after coming on duty.
49 CFR 395.3(b)(1)Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 60 hours in 7 consecutive days.
49 CFR 395.3(b)(2)Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 70 hours in 8 consecutive days.
49 CFR 395.3(c)(1)Requiring or permitting a property-carrying CMV driver to restart a period of 7 consecutive days without taking an off-duty period of 34 or more consecutive hours.
49 CFR 395.3(c)(2)Requiring or permitting a property-carrying CMV driver to restart a period of 8 consecutive days without taking an off-duty period of 34 or more consecutive hours.
49 CFR 395.5(a)(1)Requiring or permitting a passenger-carrying CMV driver to drive more than 10 hours.
49 CFR 395.5(a)(2)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty 15 hours.
49 CFR 395.5(b)(1)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 60 hours in 7 consecutive days.
49 CFR 395.5(b)(2)Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 70 hours in 8 consecutive days.
49 CFR 395.8(a)No records of duty status.
49 CFR 395.8(a)Failing to require driver to make a record of duty status.
49 CFR 395.8(e)False reports of records of duty status.
49 CFR 395.8(i)Failing to require driver to forward within 13 days of completion, the original of the record of duty status.
49 CFR 395.8(k)(1)Failing to preserve driver's record of duty status and/or supporting documents for 6 months.
49 CFR 395.13(c)(1)Requiring or permitting a driver declared out of out-of-service to operate a CMV before that driver may lawfully do so under the rules of part 395 (removed knowingly).
49 CFR 396.3(b)Failing to keep minimum records of inspection and vehicle maintenance.
49 CFR 396.9(c)(2)Requiring or permitting the operation of a motor vehicle declared “out-of-service” before repairs were made.
49 CFR 396.11(a)Failing to require driver to prepare driver vehicle inspection report (s).
49 CFR 396.11(c)Failing to correct Out-of-Service defects listed by driver in a driver vehicle inspection report before the vehicle is operated again.
49 CFR 396.17(g)Failing to promptly repair parts and accessories not meeting minimum periodic inspection standards.
49 CFR 397.5(a)Failing to ensure a motor vehicle containing Division 1.1, 1.2, or 1.3 (explosive) material is attended at all times by its driver or a qualified representative.
49 CFR 397.7(a)(1)Parking a motor vehicle containing Division 1.1, 1.2, or 1.3 materials within 5 feet of traveled portion of highway or street.
49 CFR 397.7(b)Parking a motor vehicle containing HM(s) other than Division 1.1, 1.2, or 1.3 materials within 5 feet of traveled portion of highway or street.
49 CFR 397.13(a)Permitting a person to smoke or carry a lighted cigarette, cigar or pipe within 25 feet of a motor vehicle containing Class 1 materials, Class 5 materials, or flammable materials classified as Division 2.1, Class 3, Divisions 4.1 and 4.2.
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49 CFR 397.19(a)Failing to furnish driver of motor vehicle transporting Division 1.1, 1.2, or 1.3 (explosive) materials with a copy of the rules of part 397 and/or emergency response instructions.
49 CFR 397.67(d)Requiring or permitting the operation of a motor vehicle containing explosives in Class 1, Divisions 1.1, 1.2, or 1.3 that is not accompanied by a written route plan.
49 CFR 397.101(d)Requiring or permitting the operation of a motor vehicle containing highway route-controlled quantity, as defined in § 173.403, of radioactive materials that is not accompanied by a written route plan.
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PART 387—MINIMUM LEVELS OF FINANCIAL RESPONSIBILITY FOR MOTOR CARRIERS

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52. The authority citation for part 387 continues to read as follows:

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Authority: 49 U.S.C. 13101, 13301, 13906, 13908, 14701, 31138, 31139, and 31144; and 49 CFR 1.87.

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53. Amend § 387.7 by revising paragraph (d)(3) to read as follows.

End Amendment Part
Financial responsibility required.
* * * * *

(d) * * *

(3) A written decision, order, or authorization of the Federal Motor Carrier Safety Administration authorizing a motor carrier to self-insure under § 387.309, provided the motor carrier has not been issued an unfit safety fitness determination as determined by the Federal Motor Carrier Safety Administration under part 385 of this chapter.

* * * * *
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54. Amend § 387.309 by revising paragraph (a)(3) to read as follows.

End Amendment Part
Qualifications as a self-insurer and other securities or agreements.

(a) * * *

(3) The existence of an adequate safety program. Applicant must submit evidence that the carrier's operations meet the safety fitness standard in § 385.5 of this chapter. Carriers need only certify that they have not received an unfit safety fitness determination. Applications by carriers with an unfit safety fitness determination will be summarily denied. Any self-insurance authority granted by FMCSA will automatically expire 30 days after a carrier receives a final unfit safety fitness determination from FMCSA.

* * * * *
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PART 395—HOURS OF SERVICE OF DRIVERS

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55. The authority citation for part 395 continues to read as follows:

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Authority: 49 U.S.C. 504, 31133, 31136, 31137, and 31502; sec. 113, Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-159 (as transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub. L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432, 122 Stat. 4860-4866; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; and 49 CFR 1.87.

End Authority Start Amendment Part

56. Amend § 395.15 by revising paragraph (j)(2)(i) to read as follows:

End Amendment Part
Automatic on-board recording devices.
* * * * *

(j) * * *

(2) * * *

(i) The motor carrier has been issued an unfit safety fitness determination by the FMCSA;

* * * * *
Start Signature

Issued under the authority delegated in 49 CFR 1.87 on: December 29, 2015.

T.F. Scott Darling, III,

Acting Administrator.

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Footnotes

1.  See “Safety Measurement System Changes, June 2012” page 5 in docket FMCSA-2012-0074 at http://www.regulations.gov/​#!documentDetail;​D=​FMCSA-2012-0074-0039 referencing version 3.0 of “Carrier Safety Measurement System (CSMS) Methodology.” The latest version, 3.0.2 of June 2014, is available in the rulemaking docket and at http://csa.fmcsa.dot.gov/​Documents/​SMSMethodology.pdf.

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2.  The term “crash” is synonymous to the term “accident” as defined in 49 CFR 390.5 and may be used interchangeably in this document. See 79 FR 59457, October 2, 2014.

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3.  “Estimating the Safety Impact of Proposed Safety Fitness Determination (SFD) Criteria,” FMCSA, May 2015.

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4.  This is a central assumption of the regulatory evaluation, and affects only the costs side of the net benefits projections. The Agency opted in this evaluation to consider costs under alternate 1% and 2% annual real wage growth assumptions to demonstrate the minimal degree to which potential growth in drivers' future real wages affects the net benefits of the rule.

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5.  The real growth rate of the VSL is in keeping with DOT's Office of the Secretary of Transportation guidance, available on the web at http://www.dot.gov/​sites/​dot.gov/​files/​docs/​VSL_​Guidance_​2014.pdf. This growth factor represents real growth in the median hourly wage at a macroeconomic level and is not specific to drivers or the motor carrier industry. While real median hourly wages are projected to grow at 1.18% per year at a macroeconomic level, this assumption does not apply to drivers, as the real median hourly wage of drivers has declined or remained static in recent years. Nevertheless, the Agency considered a sensitivity analysis regarding real wage growth of drivers to demonstrate the costs of this proposed rule in the event that drivers' wages grow at 1 or 2 percent per year.

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6.  Comparisons of the crash rates of carriers identified as unfit under the current and proposed SFD are presented in Section 2 of this rulemaking's Regulatory Evaluation.

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7.  Motor Carrier Safety Act of 1984, sec. 215, Pub. L. 98-554, Title II, 98 Stat. 2829, 2844-2845, Oct. 30, 1984, now codified at 49 U.S.C. 31144. See http://www.gpo.gov/​fdsys/​pkg/​STATUTE-98/​pdf/​STATUTE-98-Pg2829.pdf (PDF page 16 of 25).

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8.  Sen. Report No. 98-424 at 16, May 2, 1984. Federal Highway Administration (FHWA) had been required to determine the safety fitness of for-hire motor carriers seeking operating authority from the Interstate Commerce Commission since 1967 when the Department of Transportation was created (see section 1653(e) of the Department of Transportation Act of 1966, Pub. L. 89-670, Oct. 15, 1966 (DOT Act)), see sec. 4(e) at http://www.gpo.gov/​fdsys/​pkg/​STATUTE-80/​pdf/​STATUTE-80-Pg931.pdf (PDF page 4 of 20). FHWA codified in 49 CFR part 385 the for-hire motor carrier safety fitness regulations to address the DOT Act on June 17, 1982 (47 FR 26137) and revised them on May 19, 1983 (48 FR 22566). The 1984 Act expanded the Agency's safety fitness determinations to all motor carriers and owners and operators of CMVs operating in interstate commerce.

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9.  Sec. 4009(a) of the Transportation Equity Act for the 21st Century (TEA-21), Pub. L. 105-178, 112 Stat. 107, 405 (June 12, 1998). See http://www.gpo.gov/​fdsys/​pkg/​STATUTE-112/​pdf/​STATUTE-112-Pg107.pdf (PDF page 299 of 403).

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10.  Sec. 4114(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. 109-59, 119 Stat. 1144, 1725 (Aug. 10, 2005). See http://www.gpo.gov/​fdsys/​pkg/​STATUTE-119/​pdf/​STATUTE-119-Pg1144.pdf (PDF page 582 of 835).

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11.  Sec. 32707(a), Div. C., Title II of the Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, 126 Stat. 813 (July 6, 2012). See http://www.gpo.gov/​fdsys/​pkg/​PLAW-112publ141/​pdf/​PLAW-112publ141.pdf (PDF page 409 of 584).

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14.  See Sen. Report No. 98-424 at 9 (May 2, 1984). The amended provisions of the Motor Carrier Safety Act of 1984 are now found in subchapter III of chapter 311 of 49 U.S.C. See http://www.gpo.gov/​fdsys/​pkg/​USCODE-2013-title49/​pdf/​USCODE-2013-title49-subtitleVI-partB-chap311-subchapIII.pdf.

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16.  The statute provides FMCSA authority to determine the safety fitness of both motor carriers and employers owning and operating CMVs and drivers or other employees operating CMVs. Cf. 49 U.S.C. 31132(2) and (3). See http://www.gpo.gov/​fdsys/​pkg/​USCODE-2013-title49/​pdf/​USCODE-2013-title49-subtitleVI-partB-chap311-subchapIII-sec31132.pdf. This proposed rule involves the procedures and standards for determination of the safety fitness of only motor carriers and other employers that own or lease CMVs.

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21.  53 FR 50961 (Dec. 19, 1988), codified at 49 CFR part 385.

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22.  FHWA codified safety fitness regulations for motor carriers seeking operating authority from the Interstate Commerce Commission (for-hire motor carriers) in 49 CFR part 385 on June 17, 1982 (47 FR 26137) and revised them on May 19, 1983 (48 FR 22566). The 1984 Act expanded the Agency's safety fitness determinations from for-hire motor carriers to all motor carriers operating in interstate commerce.

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23.  56 FR 40802 (Aug. 16, 1991), Regulatory Identification Number (RIN) 2125-AC71.

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24.  Motor Carrier Safety Act of 1990, Pub. L. 101-500, sec. 15(b)(1), 104 Stat. 1218 (Nov. 3, 1990). See http://www.gpo.gov/​fdsys/​pkg/​STATUTE-104/​pdf/​STATUTE-104-Pg1213.pdf. These provisions formerly found at 49 U.S.C. 5113 are now found at 49 U.S.C. 31144(c)(2) and (3) and (f) (as amended later). See http://www.gpo.gov/​fdsys/​pkg/​USCODE-2013-title49/​pdf/​USCODE-2013-title49-subtitleVI-partB-chap311-subchapIII-sec31144.pdf.

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25.  56 FR at 40803.

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26.  108 F.3d 401 (D.C. Cir. 1997).

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28.  62 FR 28807 (May 28, 1997) adding appendix B to 49 CFR part 385. RIN 2125-AC71.

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29.  62 FR 28826 (May 28, 1997), discussion of 1991 interim final rule comments at page 28827, RIN 2125-AC71.

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30.  62 FR 60035 (Nov. 6, 1997). RIN 2125-AC71.

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31.  63 FR 62957 (Nov. 10, 1998). RIN 2125-AC71.

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32.  166 F.3d 374 (D.C. Cir. 1999).

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33.  166 F.3d at 378-380. See also Animal Legal Defense Fund, Inc. v. Glickman, 204 F.3d 229, 235 (D.C. Cir. 2000) and cases therein cited.

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34.  Section 4009 of the Transportation Equity Act for the 21st Century, Pub. L. 105-178, 112 Stat. 107, at 405, June 9, 1998. Section 4009 added the additional prohibition and recodified the statutory prohibitions of using unsatisfactory-rated motor carriers in 49 U.S.C. 5113 to 49 U.S.C. 31144.

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35.  65 FR 50919 (Aug. 22, 2000).

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36.  65 FR 11904 (Mar. 7, 2000).

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37.  FHWA proposed acute and critical regulations for determining safety fitness in 59 FR 47203 (Sept. 14, 1994) and made them final in 62 FR 28807 (May 28, 1997).

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38.  72 FR 36760 (July 5, 2007).

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39.  Report No. NTSB/HAR-07/01, PB2007-916202, Notation 7774C, Adopted Feb. 21, 2007. You may download the report by visiting http://www.ntsb.gov/​investigations/​AccidentReports/​Reports/​HAR0701.pdf on the Internet. H-07-003: “To protect the traveling public until completion of the Comprehensive Safety Analysis 2010 Initiative, immediately issue an Interim Rule to include all FMCSRs in the current CR process so that all violations of regulations are reflected in the calculation of a carrier's final rating.” See also NTSB recommendations H-99-006 “Change the safety fitness rating methodology so that adverse vehicle and driver performance-based data alone are sufficient to result in an overall unsatisfactory rating for the carrier” and H-12-017 “Include safety measurement system rating scores in the methodology used to determine a carrier's fitness to operate in the safety fitness rating rulemaking for the new Compliance, Safety, Accountability initiative.”

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40.  John A. Volpe National Transportation Systems Center, “Carrier Safety Measurement System (CSMS) Methodology-Version 3.0.2” FMCSA, June 2014.

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41.  John A. Volpe National Transportation Systems Center, “Carrier Safety Measurement System (CSMS) Violation Severity Weights,” December 2010.

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42.  The CSA operational model test was a two-phase, 30-month (February 2008 to December 2010) field test to assess the validity, efficiency, and effectiveness of the CSA operational model.

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43.  Green and Blower, “Evaluation of the CSA 2010 Operational Model Test,” FMCSA, August 2011, Report No. MC-RRA-11-019, http://csa.fmcsa.dot.gov/​Documents/​Evaluation-of-the-CSA-Op-Model-Test.pdf.

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44.  For more detailed information, please go to the CSA Web site at http://csa.fmcsa.dot.gov/​ and review documents in the program's docket at www.regulations.gov, docket number FMCSA-2004-18898. In a one year period from 2012 to 2013, there were 46 million visits to the SMS Web site. Therefore, FMCSA believes that the industry and the public are already very familiar with this system and the information it provides.

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45.  The term “crash” is synonymous to the term “accident” as defined in 49 CFR 390.5 and may be used interchangeably in this document. See 79 FR 59457, October 2, 2014.

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46.  Motor Carrier Safety Progress Report, FMCSA, as of March 31, 2013. Under the “Carrier Reviews” section, figures are summed to obtain counts in Table 5. Accessed April 29, 2015 at https://cms.fmcsa.dot.gov/​safety/​data-and-statistics/​motor-carrier-safety-progress-report-33113.

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47.  These recommendations are available through the NTSB Safety Recommendations-Search and View Web pages. Retrieved April 6, 2015, from: http://www.ntsb.gov.

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48.  49 U.S.C. 31102(b)(1)(Q). See also (1) section 4128 of SAFETEA-LU, Pub. L. 109-59, 119 Stat. 1144, 1742 (Aug. 10, 2005) (providing for State Safety Data Improvement Program Grants “to improve the accuracy, timeliness, and completeness of . . . safety data”), (2) section 32603(c) of Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, 126 Stat. 405 (July 6, 2012) (additional State Safety Data Improvement grant funding was provided for fiscal years 2013 and 2014), and (3) 49 CFR 350.201(s), 350.211, 350.327(b)(3) and (5).

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49.  FMCSA established the DataQs system in accordance with the Office of Management and Budget (OMB) Guidelines for Implementing Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554). OMB directed Federal agencies subject to the Paperwork Reduction Act (44 U.S.C. Chapter 35) to establish and implement written guidelines to ensure and maximize the quality, utility, objectivity, and integrity of the information they disseminate.

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50.  Accessed on April 6, 2015.

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51.  49 U.S.C. 31133(a)(10), 31144(b).

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55.  “Modifying the Compliance, Safety, Accountability Program Would Improve the Ability to Identify High Risk Carriers,” U.S. Government Accountability Office, Report No. GAO-14-114, February 3, 2014. See http://www.gao.gov/​products/​GAO-14-114, accessed April 6, 2015.

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56.  John A. Volpe National Transportation Systems Center, “Carrier Safety Measurement System (CSMS) Violation Severity Weights,” December 2010.

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57.  See 72 FR 62293, at 62299, (Nov. 2, 2007), Comprehensive Safety Analysis 2010 Initiative, Notice of public listening session.

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58.  Combination vehicle segments include those motor carriers that operate either truck tractors or motor coaches.

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59.  Straight truck segments include all carriers that operate straight trucks, HM cargo tank trucks, or school buses/mini-buses/limousines/vans with capacity of 9 or more passengers. These different types of power units are defined on the FMCSA Registration/Update(s) (Application for USDOT Number/Operating Authority Registration), Form MCSA-1. See http://www.regulations.gov/​#!documentDetail;​D=​FMCSA-1997-2349-0195.

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60.  Tversky, A.; Kahneman, D. (1971). “Belief in the law of small numbers”. Psychological Bulletin 76 (2): 105-110. http://psycnet.apa.org/​journals/​bul/​76/​2/​105/​.

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61.  The average batting average for all of Major League Baseball in 2014 was 0.251. See http://espn.go.com/​mlb/​stats/​team/​_/​stat/​batting/​year/​2014/​seasontype/​2, accessed on April 6, 2015.

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62.  The combination segment includes those carriers that operate either truck tractors or motor coaches. The instructions for “Application for USDOT Registration/Operating Authority” (Form MCSA-1) define a “motor coach” as “a vehicle designed for long distance transportation of passengers, usually equipped with storage racks above the seats and a baggage hold beneath the passenger compartment.” See http://www.regulations.gov/​#!documentDetail;​D=​FMCSA-1997-2349-0195. Carriers are placed in the combination category if 70 percent or more of the carrier's total power units meet that definition. The straight truck segment includes all other carriers, including those that operate straight trucks, HM cargo tank trucks, or school buses/mini-buses/limousines/vans with a capacity of 9 or more passengers.

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63.  The Motor Carrier Identification Report (Form MCS-150) will be replaced by the Application for USDOT Registration/Operating Authority (Form MCSA-1) for most motor carriers on September 30, 2016, as required by the Unified Registration System final rule published on August 23, 2013 (78 FR 52608) and the extension of effective dates final rule published on October 21, 2015 (80 FR 63695). The form MCS-150 will continue to be used by Mexico-domiciled motor carriers requesting authority to provide transportation of property or passengers in interstate commerce between Mexico and points in the United States beyond the municipalities and commercial zones along the United States-Mexico international border. The Agency is considering eliminating the MCS-150 altogether and would do so by separate rulemaking.

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64.  Reported by the motor carrier during an investigation, reported online biennially, or reported on Forms MCSA-1 or MCS-150.

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65.  Ontario's CVOR and Carrier Safety Rating Public Guideline, Ministry of Transportation, St. Catharines, Ontario, November 2011.

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66.  “Estimating the Safety Impact of Proposed Safety Fitness Determination (SFD) Criteria,” FMCSA, May 2015.

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67.  See 72 FR 62293, at 62299 (Nov. 2, 2007) and 73 FR 53483, at 53487 (Sept. 16, 2008).

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69.  A Motor Carrier's Guide to Improving Highway Safety, FMCSA-ESO-08-003, December 2009. Available at http://www.fmcsa.dot.gov/​safety-security/​eta/​index.htm.

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70.  49 U.S.C. 31144(i)(1), (2) and (4).

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71.  49 U.S.C. 31144(i)(1)(B). A “motorcoach” is defined for this purpose to be the same as an “over-the-road bus,” a bus characterized by an elevated passenger deck located over a baggage compartment, except a bus used by a public transportation agency or a school bus. See Section 32702(6) of MAP-21 and section 3038(a)(3) of TEA-21 (set out as a note to 49 U.S.C. 5310).

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72.  MAP-21 section 32707(b), 126 Stat. 814.

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73.  49 U.S.C. 31144(i)(1), (2) and (4), added by section 32707(a) of MAP-21.

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74.  This application is available without charge to Google Android users and Apple iPhone and iPad users from the respective App Stores, or by going to the FMCSA's “Look Before You Book” Web site at www.fmcsa.dot.gov/​saferbus.

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75.  See docket FMCSA-2004-18898 titled Comprehensive Safety Analysis 2010 Initiative.

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76.  See section IV.A. History of SFDs above for an explanation of the 45- and 60-day periods set by statute before a proposed unfit SFD becomes final. 49 U.S.C. 31144(c).

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77.  The proposed definition of the term Field Administrator includes the term Regional Field Administrator.

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78.  The carrier will retain the same USDOT number. See Unified Registration System final rule, August 23, 2013 (78 FR 52608).

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79.  John A. Volpe National Transportation Systems Center, “Carrier Safety Measurement System (CSMS) Violation Severity Weights,” December 2010.

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80.  166 F.3d 374 (D.C. Cir. 1999).

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81.  49 CFR 385.407 and Change to FMCSA Policy on Calculating and Publicizing the Driver, Vehicle, and Hazardous Materials Out-of-Service Rates and Crash Rates, 77 FR 38215 (June 27, 2012).

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84.  See sec. 350(a)(2) of the Department of Transportation and Related Agencies Appropriations Act, 2002, Pub. L. 107-87, 115 Stat. 833, 864-865, December 18, 2001, 49 U.S.C. 13902 note.

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85.  Section 211 of the Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Pub. L. 106-159), 113 Stat. 1765, Dec. 9, 1999, codified at 49 U.S.C. 31148. Section 211 of the MCSIA required the Secretary of Transportation to improve training and provide for the certification of motor carrier safety auditors, investigators, and inspectors to conduct safety inspection audits and reviews. The legislation also gave the Secretary oversight responsibility for the motor carrier auditors and investigators it certifies, including the authority to decertify them.

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86.  67 FR 12776, March 19, 2002, as amended at 72 FR 55701, Oct. 1, 2007; 73 FR 76819, Dec. 17, 2008.

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87.  Violation citations from previous editions of 49 CFR part 78 marked with a (1. ) may also be found at 29 FR 18652 (December 29, 1964) and those violation citations marked with a (2. ) may also be found at 32 FR 3452 (March 2, 1967).

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88.  See 49 CFR 180.405, Qualification of cargo tanks, and 180.603, Qualification of portable tanks. PHMSA, however, forbids manufacturers from building these as new specification cargo and portable tanks after certain dates in 1967, 1990, 1993, and 2005. Because these HM packages are still in use by motor carriers in commerce, FMCSA regularly finds and cites these violations of the old design specification regulations that were in effect before PHMSA and its predecessors removed the regulations from the annual CFRs.

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89.  See 49 CFR 173.240(b), 173.241(b), 173.242(b), 173.243(b), 173.244(b), 173.247(b), 173.315(a)(2), 180.405, and 180.603 of the October 1, 2010, edition of the CFRs.

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90.  See 49 CFR 180.407, Requirements for test and inspection of specification cargo tanks.

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91.  See 49 CFR 180.605, Requirements for periodic testing, inspection and repair of portable tanks.

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92.  See §§ 173.33, 173.240, 173.241, 173.242, and 173.247 for authorized DOT 51, 56, 57, and IM 101 and 102 portable tanks and MC 306, 307, 312, and 330 cargo tanks that may be used in commerce, but are no longer allowed to be constructed in the U.S.

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93.  See 49 CFR 180.407, Requirements for test and inspection of specification cargo tanks.

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94.  See http://www.gpo.gov/​libraries. Accessed on April 6, 2015.

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96.  Volpe National Transportation Center, “FMCSA Safety Program Effectiveness Measurement: Compliance Review Effectiveness Model, Results for Carriers with Compliance Reviews in Fiscal Year 2008”.

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98.  The crash rate of the general carrier population (2.13 per 100 power units) was calculated on a consistent time frame as that (4.51 per 100 power units) of the carriers identified under the proposed process.

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99.  The real growth rate of the VSL is in keeping with DOT's Office of the Secretary of Transportation guidance, available on the web at http://www.dot.gov/​sites/​dot.gov/​files/​docs/​VSL_​Guidance_​2014.pdf. This growth factor represents real growth in the median hourly wage at a macroeconomic level and is not specific to drivers or the motor carrier industry. While real median hourly wages are projected to grow at 1.18% per year at a macroeconomic level, this assumption does not apply to drivers, as the real median hourly wage of drivers has declined or remained static in recent years. Nevertheless, the Agency considered a sensitivity analysis regarding real wage growth of drivers to demonstrate the costs of this proposed rule in the event that drivers' wages grow at 1 or 2 percent per year.

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100.  FMCSA's estimated annual growth rate of 2.17 percent is similar to the BLS estimate of 2.38 percent (Employment by industry, occupation, and percent distribution, 2010 and projected 2020 484000 Truck Transportation. http://www.bls.gov/​emp/​ep_​table_​109.htm). FMCSA used the growth rate obtained from MCMIS data because it captures the dynamic nature of the industry and allows for a separate growth rate for carriers with recent activity and new entrants.

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101.  Presidential Memorandum on Regulatory Flexibility, Small Business, and Job Creation, 76 FR 3827 (Jan. 21, 2011).

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103.  Threshold of Significant Regulatory Actions Under the Unfunded Mandates Reform Act of 1995, DOT Office of Transportation Policy, December 11, 2013. The value equivalent of $100,000,000 in calendar year 1995, adjusted for inflation to calendar year 2014 levels by the Consumer Price Index for All Urban Consumers (CPI-U) as published by the Bureau of Labor Statistics, is $155,000,000. Series CPI-U CUUR0000SA0, may be retrieved at http://www.bls.gov/​data/​. Also see the current DOT guidance regarding this threshold, available at https://www.transportation.gov/​sites/​dot.gov/​files/​docs/​2015%20Threshold%20of%20Significant%20Regulatory%20Actions%20Under%20the%20Unfunded%20Mandates%20Reform%20Act%20of%201995.pdf.

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106.  44 U.S.C. 3518(c)(1)(B)(ii).

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110.  Public Law 108-447, Div. H, 118 Stat. 2809, 3268-3270 (Dec. 8, 2004).

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