Background:
- The Department
of Transportation proposed this initiative in Section 2 of "The
Motor Carrier Safety Act of 1997," legislation sent to Congress
during re-authorization of the surface transportation program.
- Section 4009
of the Transportation Equity Act for the 21st Century (TEA-21) adopted
the Administration's proposed shutdown authority. It was signed by
President Clinton in June, 1998.
- Section 4009
of TEA-21 amends 49 U.S.C. 31144, which originated from section 215
of the Motor Carrier Safety Act (MCSA) of 1984. That section
of the U..S. Code requires the Secretary of Transportation to maintain,
by regulation, a procedure for determining the safety fitness of an
owner or operator of commercial motor vehicles (CMVs). Implementing
regulations have been in effect since 1988.
- Section 4009
also transferred the prohibitions in 49 U.S.C. 5113 to section 31144.
Section 5113 was enacted under section 15(b) of the MCSA of 1990.
It prohibited motor carriers rated "unsatisfactory" from
using CMVs to transport, in interstate commerce more than 15 passengers
(including the driver) or hazardous materials (HM) in quantities requiring
placarding. The prohibitions would start on the 46th day after
the rating was issued. The regulations implementing section 5113 has
been in effect since 1991.
- Section 5113
also prohibited Federal agencies from using "unsatisfactory"
rated motor carriers to transport more than 15 passengers and placardable
quantities of HM.
- The MCSA of 1990
explicitly referred to the three-part rating scheme used by
the FHWA (satisfactory, conditional, unsatisfactory).
It directed the agency to prohibit unsatisfactory rated motor
carriers from transporting passengers and HM after the 45 day period.
Rationale
for new rule:
- The FMCSA concluded
that the functionally equivalent requirements of section 4009 of TEA-21
authorize the FMCSA to continue using its current safety fitness
rating standards and methodology.
- The current and
previous versions of 49 U.S.C. 31144 are very similar. The only
difference mandated by section 4009 is the different time periods
allowed for passenger and HM carriers (45 days) and for non-HM freight
carriers (60 days) to improve the safety of their operations or cease
operating in interstate commerce. Therefore, the FMCSA believes that
Congress intended section 4009 to authorize the application of
the principles of in section 15(b) of the MCSA of 1990 (i.e. the
unsatisfactory safety rating) to the entire range of motor carriers
that operate CMVs in interstate commerce.
- In sum, Section
4009 added a prohibition applicable to all owners and operators of
CMVs not previously subject to 49 U.S.C. 5113 -- that is, those not
transporting HM in quantities requiring placarding or passengers --
from using those vehicles in interstate commerce starting on the 61st
day after being found "unfit." It also prohibits Federal
agencies from using those owners and operators to provide interstate
transportation of non-HM freight.
Determination
of unfitness:
- The FMCSA assesses
the safety performance of motor carriers in a procedure known as a
compliance review. During a compliance review, on-the-road performance
factors (accidents, drivers and vehicles placed out-of-service, other
violations, HM violations) are examined and federal regulatory violations
may be discovered. The FMCSA assigns a safety rating on the basis
of CR findings.
- An unsatisfactory
rating means that a motor carrier does not have adequate safety controls
in place. Based upon its understanding of Congressional direction,
the FMCSA will use an unsatisfactory safety rating as an determination
of unfitness.
- The rule
will prohibit all motor carriers found to be unfit from operating
CMVs in interstate commerce.
Key features
of the proposal include:
- Motor carriers
will have 60 days after the FHWA makes a determination of unfitness
to improve operations or face shutdown. The agency may extend the
compliance period another 60 days only if the motor carrier is making
a good faith effort to improve its safety fitness.
- Passenger and
HM motor carriers will continue to have 45 days to correct deficiencies.
- The proposed
regulation will not be applied retroactively. It will apply only to
motor carriers rated unsatisfactory on or after the effective date
of a final rule.
- Carriers holding
an unsatisfactory rating at the time the rule becomes effective are
not subject to immediate shutdown. However, if the carrier still is
determined to be unfit after a follow up visit by a safety investigator,
the new provisions would apply.
- The FHWA intends
to carefully track the safety of operations of motor carriers currently
holding unsatisfactory safety ratings to ensure that the safety of
the traveling public is not exposed to increased risk from a motor
carrier's operation.
- Under the provisions
of TEA-21, federal agencies will continue to be prohibited from using
any motor carrier for interstate passenger or HM transportation that
has an "unsatisfactory" safety rating. They will also be
prohibited from using any other motor carrier which has an
"unsatisfactory" safety rating issued under the provisions
of this rule.
|
