[Federal Register: November 10, 1998 (Volume 63, Number 217)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 385
[FHWA Docket Nos. MC-94-22 and MC-96-18; FHWA-97-2252]
Safety Fitness Procedures
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule; corrections.
SUMMARY: The FHWA is making corrections to the November 6, 1997, final
rule on Safety Fitness Procedures. The final rule established a means
of determining whether a motor carrier has complied with the fitness
requirements of the Motor Carrier Safety Act of 1984. The final rule
included several minor errors which this document corrects.
DATES: Effective November 10, 1998.
FOR FURTHER INFORMATION CONTACT:
Mr. William C. Hill, Vehicle and Operations Division, Office of Motor
Carrier Research and Standards, (202) 366-4009, or Mr. Charles Medalen,
Office of the Chief Counsel, (202) 366-1354, Federal Highway
Administration, 400 Seventh Street, SW., Washington, D.C. 20590. Office
hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday,
except Federal holidays.
Internet users can access all comments received by the U.S. DOT
Dockets, Room PL-401, by using the universal resource locator (URL):
http://dms.dot.gov. It is available 24 hours a day, 365 days each year.
Please follow the instructions online for more information and help.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Government Printing
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet
users may reach the Federal Register's home page at: http://
www.nara.gov/fedreg and the Government Printing Office's database at:
On November 6, 1997, the FHWA published a final rule incorporating
the agency's safety fitness rating methodology (SFRM) as an appendix to
49 CFR part 385, Safety Fitness Procedures (62 FR 60035). The SFRM is
used to measure the safety fitness of motor carriers against the
standard contained in 49 CFR Part 385. The final rule also included a
procedure which provides motor carriers with a 45-day period during
which a proposed rating can be challenged before it becomes effective.
The final rule included several minor errors.
Errors in Final Rule
There are references to commercial motor vehicles used to transport
``15 or more passengers, including the driver,'' in the Summary,
Discussion of Comments, Rulemaking Analysis, and Appendix B to Part
385. The definition of a ``commercial motor vehicle'' in Sec. 390.5
includes a passenger-carrying threshold which reads as follows: ``The
vehicle is designed to transport more than 15 passengers, including the
driver.'' Therefore, the wording used in the rule includes vehicles
that are not subject to the FMCSRs. To correct this problem, the agency
is replacing ``15 or more passengers, including the driver'' with
``more than 15 passengers, including the driver.''
In addition, the vehicle out-of-service (OOS) rate was omitted from
section II.A.2 of Appendix B. The first sentence in this section
currently reads ``If a carrier's vehicle OOS rate is less than percent,
the initial factor rating will be satisfactory.'' The sentence is being
revised to read ``If a carrier's vehicle OOS rate is less than 34
percent, the initial factor rating will be satisfactory.''
The motor carrier Rating Table in section III.A. of the Appendix is
being revised to replace ``0'' with ``1'' on the third line of the
first column. As revised, the table indicates that 1 unsatisfactory
factor rating and 2 or fewer conditional factor ratings, will result in
an overall safety rating of conditional.
Under section III.B. of the Appendix, Proposed Safety Rating, the
word ``OR'' was omitted between ``Your proposed safety rating is
SATISFACTORY'' and ``Your proposed safety rating is CONDITIONAL.'' The
words ``safety'' and ``days'' were omitted from the sentence following
``Your proposed safety rating is CONDITIONAL.'' The sentence is being
revised to read as follows: ``The proposed safety rating will become
the final safety rating 45 days after you receive this notice.''
Under section VII of the Appendix, List of Acute and Critical
Regulations, Secs. 391.87(f)(5) through 391.115(c) are being deleted to
conform to a final rulemaking for technical amendments which was
published on July 11, 1997 (62 FR 37150). That rule removed Subpart H
(Controlled Substances Testing) of 49 CFR Part 391 because the FHWA's
alcohol and controlled substances regulations are now codified at 49
CFR Part 382. Subpart H included Secs. 391.81-391.125, and the list of
acute and critical regulations is therefore being amended to remove the
references to these sections.
It has been brought to our attention that the discussion of
preventable accidents in section II.B.(e) of Appendix B may be subject
to misinterpretation. If a carrier has a proposed or current
unsatisfactory accident factor rating, and the carrier believes the
accident factor would not be unsatisfactory if evaluated on the basis
of a preventable accident rate, it should seek an administrative review
under Sec. 385.15. Some readers apparently believe that motor carriers
who contend that an accident was not preventable are required to
present the FHWA with a very detailed analysis or investigation of the
incident, perhaps based on the work of accident reconstructionists and
attorneys. That was not the agency's intention. Although there is
nothing to prevent a carrier from submitting extensive evidence of non-
preventability, the FHWA believes that a copy of an accident report
prepared by a government agency would generally be sufficient,
providing the report did not identify any actions the driver could have
taken to prevent the accident. The carrier could offer any additional
information or explanation it considered appropriate. For example, the
driver of a commercial motor vehicle (CMV) that is struck from behind
when it stops at a toll booth, or from the side when crossing an
intersection on a green light, has no realistic opportunity to avoid
Rulemaking Analyses and Notices
This final rule makes minor corrections to the November 6, 1997,
final rule concerning safety fitness procedures. Since the amendments
to the final rule are simply corrections, the FHWA finds good cause
pursuant to 5 U.S.C. 553(b)(3)(B) to promulgate this final rule without
notice and comment rulemaking and to make it effective on the date of
publication in the Federal Register pursuant to 5 U.S.C. 553(d)(3).
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866. The
agency has also determined that this action is not a significant
regulatory action under the Department of Transportation's regulatory
policies and procedures. This final rule is clerical in nature and does
not include substantive changes to the November 6, 1997, final rule
concerning safety fitness procedures.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small entities
and has determined that it will not have a significant economic impact
on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (the Act) (Pub. L. 104-4)
requires each agency to assess the effects of its regulatory actions on
State, local, and tribal governments and the private sector. Any agency
promulgating a rule likely to result in a Federal mandate requiring
expenditures by a State, local, or tribal government or by the private
sector of $100 million or more in any one year must prepare a written
statement incorporating various assessments, estimates, and
descriptions that are delineated in the Act. The FHWA has determined
that the changes in this rule will not have an impact of $100 million
or more in any one year.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
this rulemaking does not have sufficient Federalism implications to
warrant the preparation of a Federalism assessment.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
This action does not contain a collection of information
requirement for the purposes of the Paperwork Reduction Act of 1995, 44
National Environmental Policy Act
The agency has analyzed this rulemaking for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347), and
has determined that this action would not have any effect on the
quality of the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
List of Subjects in 49 CFR Part 385
Highway safety, Motor carriers, and Safety fitness procedures.
Issued on: October 29, 1998.
Gloria J. Jeff,
In consideration of the foregoing, the FHWA is amending title 49,
Code of Federal Regulations, Chapter III, Appendix B to Part 385 as set
PART 385--SAFETY FITNESS PROCEDURES
1. The authority citation for part 385 continues to read as
Authority: 49 U.S.C. 104, 504, 521(b)(5)(A), 5113, 31136, 31144,
and 31502; 49 CFR 1.48.
2. Appendix B to Part 385 is amended by revising section
II.A.(a)2., the motor carrier safety table in section III.A., and
sections III.B.(a) and III.B.(c); and in section VII by removing the
citations and text for Secs. 391.87(f)(5) through 391.115(c), to read
Appendix B to Part 385--Explanation of Safety Rating Process
* * * * *
II. Converting CR Information Into A Safety Rating
* * * * *
A. Vehicle Factor
(a) * * *
2. If a carrier's vehicle OOS rate is less than 34 percent, the
initial factor rating will be satisfactory. If noncompliance with an
acute regulation or a pattern of noncompliance with a critical
regulation is discovered during the examination of Part 396
requirements, the factor rating will be lowered to conditional. If
the examination of Part 396 requirements discovers no such problems
with the systems the motor carrier is required to maintain for
compliance, the Vehicle Factor remains satisfactory.
* * * * *
III. Safety Rating
A. Rating Table
* * * * *
Motor Carrier Safety Rating Table
----------------------------------------------------- Overall Safety
Unsatisfactory Conditional rating
0............................... 2 or fewer........ Satisfactory
0............................... more than 2....... Conditional
1............................... 2 or fewer........ Conditional
1............................... more than 2....... Unsatisfactory
2 or more....................... 0 or more......... Unsatisfactory
B. Proposed Safety Rating
(a) The proposed safety rating will appear on the CR. The
following appropriate information will appear after the last entry
on the CR, MCS-151, part B.
``Your proposed safety rating is SATISFACTORY.''
``Your proposed safety rating is CONDITIONAL.'' The proposed
safety rating will become the final safety rating 45 days after you
receive this notice.
``Your proposed safety rating is UNSATISFACTORY.'' The proposed
safety rating will become the final safety rating 45 days after you
receive this notice
* * * * *
(c) Proposed unsatisfactory safety ratings will indicate that,
if the unsatisfactory rating becomes final, the motor carrier will
be subject to the provision of Sec. 385.13, which prohibits motor
carriers rated unsatisfactory from transporting hazardous materials
requiring placarding or more than 15 passengers, including the
* * * * *
[FR Doc. 98-30105 Filed 11-9-98; 8:45 am]
BILLING CODE 4910-22-M