Carrier Safety Fitness Determination, 3561-3634 [2015-33153]

Download as PDF Vol. 81 Thursday, No. 13 January 21, 2016 Part II Department of Transportation mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Motor Carrier Safety Administration 49 CFR Parts 350, 365, 385, et al. Carrier Safety Fitness Determination; Proposed Rule VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\21JAP2.SGM 21JAP2 3562 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 350, 365, 385, 386, 387, and 395 [Docket No. FMCSA–2015–0001] RIN 2126–AB11 Carrier Safety Fitness Determination Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of proposed rulemaking (NPRM); request for comments. AGENCY: 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 onroad 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. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 SUMMARY: ATRI ................................................ BASIC ............................................. CDL ................................................. CMV ................................................ CVOR .............................................. CR ................................................... CSA ................................................. DOT ................................................. FHWA .............................................. FMCSA ............................................ FMCSRs .......................................... FR ................................................... HM ................................................... HMR ................................................ MCMIS ............................................ MCSAC ........................................... MCSAP ........................................... NPRM .............................................. NTSB ............................................... OMB ................................................ PHMSA ........................................... PU ................................................... SFD ................................................. SMS ................................................ VMT ................................................. VOLPE ............................................ VerDate Sep<11>2014 18:32 Jan 20, 2016 You may submit comments (initial and reply) identified by the docket number FMCSA–2015–0001 using any of the following methods: • Web site: https:// 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. 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. SUPPLEMENTARY INFORMATION: This notice of proposed rulemaking is organized as follows: ADDRESSES: 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 American Transportation Research Institute. Behavior Analysis and Safety Improvement Categories. Commercial Driver’s License. Commercial Motor Vehicle. Commercial Vehicle Operators Registration. Compliance Review. Compliance, Safety, Accountability. United States Department of Transportation. Federal Highway Administration. Federal Motor Carrier Safety Administration. Federal Motor Carrier Safety Regulations, 49 CFR parts 350 through 399. Federal Register. Hazardous Materials. Hazardous Materials Regulations, 49 CFR parts 171 through 180. Motor Carrier Management Information System. Motor Carrier Safety Advisory Committee. Motor Carrier Safety Assistance Program. Notice of Proposed Rulemaking. National Transportation Safety Board. Office of Management and Budget. Pipeline and Hazardous Materials Safety Administration. Power Unit. Safety Fitness Determination. Safety Measurement System. Vehicle Miles Traveled. U.S. DOT Office of the Assistant Secretary for Research and Technology’s John A. Volpe National Transportation Systems Center, Cambridge, MA. Jkt 238001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 FMCSA’s MCMIS automatically takes each motor carrier’s safety data from onroad 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 1 See ‘‘Safety Measurement System Changes, June 2012’’ page 5 in docket FMCSA–2012–0074 at https://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 https://csa.fmcsa.dot.gov/Documents/SMS Methodology.pdf. PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 3563 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 noncompliance 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 onroad 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 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. E:\FR\FM\21JAP2.SGM 21JAP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 3564 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules substances 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 noncompliance 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 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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. PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 Application of the proposed method to data from a supporting analysis 3 identified 1,805 additional poorperforming 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 3 ‘‘Estimating the Safety Impact of Proposed Safety Fitness Determination (SFD) Criteria,’’ FMCSA, May 2015. 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. E:\FR\FM\21JAP2.SGM 21JAP2 3565 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules cost 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 .................................................................................................................................................... Costs ........................................................................................................................................................ $240.9 9.9 $240.9 10.6 $240.9 11.3 Net Benefits ...................................................................................................................................... 231.1 230.4 229.6 Note: Compliance costs to carriers that improve performance to achieve compliance are not estimated. Cumulative benefits, costs, and net benefits of the proposed rule are presented in Table 2 for not discounted, 3% discounted, and 7% discounted bases. For brevity, corresponding tables associated with the 1% and 2% annual real wage growth scenarios are not included here as the projections are nearly identical under these alternate assumptions, and the minimal differences resulting from utilization of positive real wage growth assumptions are demonstrated in the annualized values in the preceding table. TABLE 2—CUMULATIVE BENEFITS AND COSTS OF THE RULE FROM 2017 THROUGH 2026 [in millions of 2013$] Discount rate—> 0% 3% 7% Benefits .................................................................................................................................................... Costs ........................................................................................................................................................ $2,290.9 92.2 $1,997.5 81.0 $1,692.0 69.2 Net Benefits ...................................................................................................................................... 21,98.7 1,916.5 1,622.8 Note: Compliance costs to carriers that improve performance to achieve compliance are not estimated. The proposed rule would replace the current safety fitness rating methodology with new methodologies. The new methodologies incorporate onroad 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 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 https://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. 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. 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 https://www.gpo.gov/fdsys/pkg/STATUTE-98/pdf/ STATUTE-98-Pg2829.pdf (PDF page 16 of 25). 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 https://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. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 III. Legal Basis VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 3566 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 for 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 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 https:// www.gpo.gov/fdsys/pkg/STATUTE-112/pdf/ STATUTE-112-Pg107.pdf (PDF page 299 of 403). 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 https:// www.gpo.gov/fdsys/pkg/STATUTE-119/pdf/ STATUTE-119-Pg1144.pdf (PDF page 582 of 835). 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 https://www.gpo.gov/fdsys/pkg/PLAW112publ141/pdf/PLAW-112publ141.pdf (PDF page 409 of 584). 12 49 U.S.C. 31144(a). See https://www.gpo.gov/ fdsys/pkg/USCODE-2013-title49/pdf/USCODE2013-title49-subtitleVI-partB-chap311-subchapIIIsec31144.pdf. 13 49 U.S.C. 31144(b). VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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, 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 https://www.gpo.gov/ fdsys/pkg/USCODE-2013-title49/pdf/USCODE2013-title49-subtitleVI-partB-chap311subchapIII.pdf. 15 49 U.S.C. 504(c). See https://www.gpo.gov/fdsys/ pkg/USCODE-2013-title49/pdf/USCODE-2013title49-subtitleI-chap5-subchapI-sec504.pdf. 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 https://www.gpo.gov/ fdsys/pkg/USCODE-2013-title49/pdf/USCODE2013-title49-subtitleVI-partB-chap311-subchapIIIsec31132.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. 17 49 U.S.C. 13905(f)(1)(B). See https:// www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/ USCODE-2013-title49-subtitleIV-partB-chap139sec13905.pdf. 18 49 U.S.C. 31134(c). See https://www.gpo.gov/ fdsys/pkg/USCODE-2013-title49/pdf/USCODE2013-title49-subtitleVI-partB-chap311-subchapIIIsec31134.pdf. 19 49 U.S.C. 31102(a) and (b). See https:// www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/ USCODE-2013-title49-subtitleVI-partB-chap311subchapI-sec31102.pdf. 20 49 CFR 1.87(f). PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 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 21 53 FR 50961 (Dec. 19, 1988), codified at 49 CFR part 385. 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. 23 56 FR 40802 (Aug. 16, 1991), Regulatory Identification Number (RIN) 2125–AC71. 24 Motor Carrier Safety Act of 1990, Pub. L. 101– 500, sec. 15(b)(1), 104 Stat. 1218 (Nov. 3, 1990). See https://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 https://www.gpo.gov/fdsys/pkg/USCODE2013-title49/pdf/USCODE-2013-title49-subtitleVIpartB-chap311-subchapIII-sec31144.pdf. 25 56 FR at 40803. 26 108 F.3d 401 (D.C. Cir. 1997). 27 49 U.S.C. 31144. E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 methodology 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 28 62 FR 28807 (May 28, 1997) adding appendix B to 49 CFR part 385. RIN 2125–AC71. 29 62 FR 28826 (May 28, 1997), discussion of 1991 interim final rule comments at page 28827, RIN 2125–AC71. 30 62 FR 60035 (Nov. 6, 1997). RIN 2125–AC71. 31 63 FR 62957 (Nov. 10, 1998). RIN 2125–AC71. 32 166 F.3d 374 (D.C. Cir. 1999). 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. 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. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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. 35 65 FR 50919 (Aug. 22, 2000). FR 11904 (Mar. 7, 2000). 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). 38 72 FR 36760 (July 5, 2007). 39 Report No. NTSB/HAR–07/01, PB2007–916202, Notation 7774C, Adopted Feb. 21, 2007. You may download the report by visiting https:// 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.’’ 36 65 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 3567 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 40 John A. Volpe National Transportation Systems Center, ‘‘Carrier Safety Measurement System (CSMS) Methodology–Version 3.0.2’’ FMCSA, June 2014. 41 John A. Volpe National Transportation Systems Center, ‘‘Carrier Safety Measurement System (CSMS) Violation Severity Weights,’’ December 2010. 42 The CSA operational model test was a twophase, 30-month (February 2008 to December 2010) field test to assess the validity, efficiency, and effectiveness of the CSA operational model. 43 Green and Blower, ‘‘Evaluation of the CSA 2010 Operational Model Test,’’ FMCSA, August 2011, Report No. MC–RRA–11–019, https:// csa.fmcsa.dot.gov/Documents/Evaluation-of-theCSA-Op-Model-Test.pdf. E:\FR\FM\21JAP2.SGM 21JAP2 3568 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules SMS 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. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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 44 For more detailed information, please go to the CSA Web site at https://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. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 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 E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules their safety problems and to change unsafe behavior. Currently, when a motor carrier’s SMS scores meet or exceed established intervention thresholds the Agency 3569 prioritizes it for investigations or enforcement. The SMS intervention thresholds are as follows: TABLE 3—INTERVENTION THRESHOLDS FOR SMS Basic SMS Intervention thresholds • Passenger Unsafe Driving, HOS, Crash Indicator ...................................................... Driver Fitness, Controlled Substances/Alcohol, Vehicle Maintenance ..... HM ............................................................................................................. Greater than or equal to (≥) 50% .... ≥65% ............................................... ≥80 ................................................... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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-ofservice 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 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. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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, onroad 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 ratings Unsatisfactory Conditional 0 ..................... 0 ..................... 2 or fewer More than 2. 2 or fewer More than 2. 0 or more .. 1 ..................... 1 ..................... 2 or more ....... Overall safety rating Satisfactory Conditional Conditional Unsatisfactory Unsatisfactory 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. 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/motorcarrier-safety-progress-report-33113. PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 HM All others ≥60% ≥75% ≥80% ≥65% ≥80% ≥80% TABLE 5—DISTRIBUTION OF RATABLE INVESTIGATIONS TYPES IN FY 2012 46 Investigation type Number Ratable Full CRs/Comprehensive On-Site Investigations ............................. Ratable Focused CRs/Focused On-Site Investigations ................................... 10,361 Total ............................... 17,002 6,641 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. E:\FR\FM\21JAP2.SGM 21JAP2 3570 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 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 Statereported 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 (https://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 Minimum number of inspections required Minimum number of inspections with violations required Assess ..................................... 11 0 Data Sufficiency for Potential to Fail a BASIC. 11 11 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Action 47 These recommendations are available through the NTSB Safety Recommendations-Search and View Web pages. Retrieved April 6, 2015, from: https://www.ntsb.gov. 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 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 Explanation If a motor carrier has 11 inspections in MCMIS, the Agency has sufficient information to assess it. This is the data threshold that must be met before a carrier could fail a BASIC. 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). 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 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 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. 50 Accessed on April 6, 2015. E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 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 51 49 U.S.C. 31133(a)(10), 31144(b). U.S.C. 31144(c)(1)–(3). 53 49 U.S.C. 31144(c)(5). 54 49 U.S.C. 31144(f). mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52 49 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 3571 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. E:\FR\FM\21JAP2.SGM 21JAP2 3572 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules Figure 1: Example for Unfit Method 1 Carrier Name: Carrier A BASICs Any TWO X Unfit Figure 2: Example for Unfit Method 2 Carrier Name: Carrier C D D m D X Proposed Unfit m VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4725 E:\FR\FM\21JAP2.SGM 21JAP2 EP21JA16.000</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 D 3573 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 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 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Power units Number of carriers 5 or fewer ......................................................................................................... 6 to 15 .............................................................................................................. 16 to 50 ............................................................................................................ 51 to 500 .......................................................................................................... 55 ‘‘Modifying the Compliance, Safety, Accountability Program Would Improve the Ability VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 Percent of total shown (percent) 31,957 21,885 14,843 6,558 to Identify High Risk Carriers,’’ U.S. Government Accountability Office, Report No. GAO–14–114, 5+ inspections (intervention) 42.1 28.9 19.6 8.6 Number of carriers 86,486 32,974 18,122 7,058 Percent of total shown (percent) 59.5 22.7 12.5 4.9 February 3, 2014. See https://www.gao.gov/products/ GAO-14-114, accessed April 6, 2015. E:\FR\FM\21JAP2.SGM 21JAP2 EP21JA16.001</GPH> 11+ inspections (SFD) 3574 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 7—NUMBER OF CARRIERS THAT HAVE 11 OR MORE OR 5 OR MORE INSPECTIONS IN A 24-MONTH PERIOD— Continued 11+ inspections (SFD) Power units Number of carriers 5+ inspections (intervention) Percent of total shown (percent) Number of carriers Percent of total shown (percent) 501+ ................................................................................................................. 585 0.8 597 0.4 Total .......................................................................................................... 75,828 100 145,237 100 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. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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 timeand 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. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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, 56 John A. Volpe National Transportation Systems Center, ‘‘Carrier Safety Measurement System (CSMS) Violation Severity Weights,’’ December 2010. 57 See 72 FR 62293, at 62299, (Nov. 2, 2007), Comprehensive Safety Analysis 2010 Initiative, Notice of public listening session. PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 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 E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules dividing 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 3575 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 BASIC Failure standard equivalent to 95% Safety Event Group (number of inspections with unsafe driving violations) BASIC Failure standard equivalent to 96% BASIC Failure standard equivalent to 98% BASIC Failure standard equivalent to 99% 12.74 8.77 5.47 2.77 14.21 9.58 6.26 2.80 18.54 13.5 8.10 2.90 27.25 18.98 9.71 3.00 11 to 21 ............................................................................................................ 22–57 ............................................................................................................... 58–149 ............................................................................................................. 150+ ................................................................................................................. TABLE 9—UNSAFE DRIVING FAILURE STANDARDS: (WEIGHTED VIOLATIONS DIVIDED BY POWER UNITS) STRAIGHT TRUCK 59 SEGMENT—ALTERNATIVES CONSIDERED BASIC Failure standard equivalent to 95% Safety event group (number of inspections with unsafe driving violations) BASIC Failure standard equivalent to 96% BASIC Failure standard equivalent to 98% BASIC Failure standard equivalent to 99% 8.19 4.59 1.36 9.64 5.12 1.47 11.47 7.31 1.89 15.99 12.05 2.05 11 to 18 ............................................................................................................ 19–49 ............................................................................................................... 50+ ................................................................................................................... TABLE 10—HOURS OF SERVICE COMPLIANCE FAILURE STANDARDS (WEIGHTED VIOLATIONS DIVIDED BY DRIVER INSPECTIONS)—ALTERNATIVES CONSIDERED BASIC Failure standard equivalent to 95% Safety event group (number of driver inspections) BASIC Failure standard equivalent to 96% BASIC Failure standard equivalent to 98% BASIC Failure standard equivalent to 99% 3.88 2.94 2.09 1.46 4.15 3.13 2.20 1.54 4.94 3.66 2.44 1.73 5.65 5.21 2.69 1.91 11 to 20 ............................................................................................................ 21–100 ............................................................................................................. 101–500 ........................................................................................................... 501+ ................................................................................................................. TABLE 11—DRIVER FITNESS FAILURE STANDARDS (WEIGHTED VIOLATIONS DIVIDED BY DRIVER INSPECTIONS)— ALTERNATIVES CONSIDERED BASIC Failure standard equivalent to 95% Safety event group (number of driver inspections) BASIC Failure standard equivalent to 96% BASIC Failure standard equivalent to 98% BASIC Failure standard equivalent to 99% 1.54 0.78 0.29 0.14 1.68 0.86 0.31 0.15 2.19 1.11 0.39 0.19 2.74 1.39 0.50 0.24 11 to 20 ............................................................................................................ 21–100 ............................................................................................................. 101–500 ........................................................................................................... 501+ ................................................................................................................. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 TABLE 12—VEHICLE MAINTENANCE FAILURE STANDARDS (WEIGHTED VIOLATIONS DIVIDED BY VEHICLE INSPECTIONS)— ALTERNATIVES CONSIDERED BASIC Failure standard equivalent to 95% Safety event group (number of vehicle inspections) BASIC Failure standard equivalent to 96% BASIC Failure standard equivalent to 98% BASIC Failure standard equivalent to 99% 14.19 14.93 16.94 18.79 11 to 20 ............................................................................................................ 58 Combination vehicle segments include those motor carriers that operate either truck tractors or motor coaches. 59 Straight truck segments include all carriers that operate straight trucks, HM cargo tank trucks, or school buses/mini-buses/limousines/vans with VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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 https://www.regulations.gov/ #!documentDetail;D=FMCSA-1997-2349-0195. PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 60 Tversky, A.; Kahneman, D. (1971). ‘‘Belief in the law of small numbers’’. Psychological Bulletin 76 (2): 105–110. https://psycnet.apa.org/journals/ bul/76/2/105/. E:\FR\FM\21JAP2.SGM 21JAP2 3576 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 12—VEHICLE MAINTENANCE FAILURE STANDARDS (WEIGHTED VIOLATIONS DIVIDED BY VEHICLE INSPECTIONS)— ALTERNATIVES CONSIDERED—Continued BASIC Failure standard equivalent to 95% Safety event group (number of vehicle inspections) BASIC Failure standard equivalent to 96% BASIC Failure standard equivalent to 98% BASIC Failure standard equivalent to 99% 11.96 8.84 6.54 12.62 9.18 6.77 14.38 10.36 7.9 16.12 11.82 8.91 21–100 ............................................................................................................. 101–500 ........................................................................................................... 501+ ................................................................................................................. TABLE 13—HM COMPLIANCE FAILURE STANDARDS (WEIGHTED VIOLATIONS DIVIDED BY PLACARDED HM INSPECTIONS)— ALTERNATIVES CONSIDERED BASIC Failure standard equivalent to 95% Safety event group (number of placarded HM inspections) BASIC Failure standard equivalent to 96% BASIC Failure standard equivalent to 98% BASIC Failure standard equivalent to 99% 4.18 2.81 1.86 1.33 4.34 2.99 1.96 1.46 5.55 3.65 2.34 1.83 6.87 4.82 2.56 1.95 11 to 20 ............................................................................................................ 21–100 ............................................................................................................. 101–500 ........................................................................................................... 501+ ................................................................................................................. 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 5 or fewer PU (%) Alternatives considered General Population of Carriers with Recent Activity * as of March 2013 (Baseline for comparison) ............................ 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) ......................................................................... 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 to 15 PU (%) 16 to 50 PU (%) 51 to 500 PU (%) 501+ PU (%) 82.8 11.2 4.4 1.5 0.1 63.1 22.2 10.8 3.5 0.3 63.9 22.3 10.2 3.3 0.3 * 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)] mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Alternatives considered 5 or fewer PU General Population of Carriers with Recent Activity as of March 2013 (Baseline for comparison) ............................ 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) ......................................................................... VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00016 6 to 15 PU 16 to 50 PU 51 to 500 PU 501+ PU 2.2 2.4 2.2 1.8 6.7 Fmt 4701 2.3 5.3 4.8 3.6 2.6 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 3577 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 15—CRASH RATES OF CARRIERS DETERMINED TO BE UNFIT—BY ALTERNATIVES CONSIDERED—Continued [in crashes per 100 power units (PU)] Alternatives considered 5 or fewer PU 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) ......................................................... 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. 6 to 15 PU 6.5 16 to 50 PU 5.2 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 51 to 500 PU 4.7 3.8 501+ PU 3.5 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 Number of carriers unfit based on 2 or more failed BASICs (inspection violations only) Alternatives considered mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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) ......................................................................... 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) ................................................................................. Crash rate (crashes per 100 power units) Active carriers Crashes for active carriers 479 3.75 387 569 15,161 262 8.28 211 300 3,625 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. 60 Tversky, A.; Kahneman, D. (1971). ‘‘Belief in the law of small numbers’’. Psychological Bulletin 76 (2): 105–110. https://psycnet.apa.org/journals/ bul/76/2/105/. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00017 Power units for active carriers Fmt 4701 Sfmt 4702 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. E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 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 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 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 atbats 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 61 The average batting average for all of Major League Baseball in 2014 was 0.251. See https:// espn.go.com/mlb/stats/team/_/stat/batting/year/ 2014/seasontype/2, accessed on April 6, 2015. E:\FR\FM\21JAP2.SGM 21JAP2 EP21JA16.002</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 3578 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 other 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.’’ 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 https:// www.regulations.gov/#!documentDetail;D=FMCSA1997-2349-0195. 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. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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. 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. 64 Reported by the motor carrier during an investigation, reported online biennially, or reported on Forms MCSA–1 or MCS–150. 65 Ontario’s CVOR and Carrier Safety Rating Public Guideline, Ministry of Transportation, St. Catharines, Ontario, November 2011. PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 3579 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. E:\FR\FM\21JAP2.SGM 21JAP2 3580 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 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 critical 49 CFR section 173.24(b)(1) Critical ................ 173.24b(d)(2) Critical ................ 173.33(a)(1) Critical ................ 173.33(a)(2) Critical ................ 173.33(b)(1) Critical ................ Acute .................. Critical ................ 177.800(c) 177.801 177.817(a) Critical ................ 177.834(i) Critical ................ 177.848(d) Critical ................ 180.407(a) Acute .................. 382.115(a) Acute .................. 382.115(b) Acute .................. 382.201 Acute .................. 382.211 Acute .................. 382.215 Critical ................ 382.301(a) Critical ................ Critical ................ 382.303(a) 382.303(b) Acute .................. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Critical ................ 382.305 Critical ................ 382.305(b)(1) Critical ................ 382.305(b)(2) Behavior analysis and safety improvement category (BASIC) Description of violation Accepting for transportation or transporting a package that has an identifiable release of a HM to the environment. Loading bulk packaging (cargo tank) with an HM which exceeds the maximum weight of lading marked on the specification plate. Offering or accepting a HM for transportation in an unauthorized cargo tank. Loading or accepting for transportation two or more materials in a cargo tank motor vehicle which if mixed results in an unsafe condition. Loading HM in a cargo tank motor would have a dangerous reaction when in contact with the tank. Failing to instruct a category of employees in HM regulations ............ Accepting for transportation or transporting a forbidden material ........ Transporting a shipment of HM not accompanied by a properly prepared shipping paper. Loading or unloading a cargo tank without a qualified person in attendance. Failing to store, load, or transport HM in accordance with the segregation table. Transporting a shipment of HM in cargo tank that has not been inspected or retested in accordance with § 180.407. Failing to implement an alcohol and/or controlled substances testing program (domestic motor carrier). Failing to implement an alcohol and/or controlled substances testing program (foreign motor carrier). Using a driver known to have an alcohol concentration of 0.04 or greater. Using a driver who has refused to submit to an alcohol or controlled substances test required under part 382. Using a driver known to have tested positive for a controlled substance. Using a driver before the motor carrier has received a negative preemployment controlled substance test result. Failing to conduct post-accident testing on driver for alcohol .............. Failing to conduct post-accident testing on driver for controlled substances. Failing to implement a random controlled substances and/or an alcohol testing program. 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. 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. HM Compliance. HM Compliance. HM Compliance. HM Compliance. HM Compliance. Driver Fitness. HM Compliance. HM Compliance. HM Compliance. HM Compliance. HM Compliance. Controlled Substances. Controlled Substances. Controlled Substances. Controlled Substances. Controlled Substances. Controlled Substances. Controlled Substances. Controlled Substances. Controlled Substances. Controlled Substances. Controlled Substances. 66 ‘‘Estimating the Safety Impact of Proposed Safety Fitness Determination (SFD) Criteria,’’ FMCSA, May 2015. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 3581 TABLE 17—REVISED CRITICAL AND ACUTE REGULATIONS—Continued Acute or critical 49 CFR section 382.309 382.503 Critical ................ Acute .................. 383.3(a)/ 383.23(a) 383.37(a) Acute .................. 383.51(a) Acute .................. Acute .................. Critical ................ Critical ................ 391.11(b)(4) 391.15(a) 391.45(a) 391.45(b)(1) Critical ................ Critical ................ 391.51(a) 392.2 Critical ................ 392.6 Critical ................ 392.9(a)(1) Critical ................ 395.1(h)(1)(i) Critical ................ 395.1(h)(1)(ii) Critical ................ 395.1(h)(1)(iii) Critical ................ 395.1(h)(1)(iv) Critical ................ 395.1(h)(2)(i) Critical ................ 395.1(h)(2)(ii) Critical ................ 395.1(h)(2)(iii) Critical ................ 395.1(h)(2)(iv) Critical ................ 395.1(o) Critical ................ 395.3(a)(1) Critical ................ 395.3(a)(2) Critical ................ 395.3(b)(1) Critical ................ 395.3(b)(2) Critical ................ 395.5(a)(1) Critical ................ mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Critical ................ Critical ................ 395.5(a)(2) Critical ................ 395.5(b)(2) Critical ................ Critical ................ Critical ................ 395.8(a) 395.8(e) 395.8(i) Critical ................ Critical ................ 395.8(k)(1) 395.8(k)(1) VerDate Sep<11>2014 18:32 Jan 20, 2016 Behavior analysis and safety improvement category (BASIC) Description of violation Using a driver without a return to duty test .......................................... Allowing 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 § 382.605. Using a driver who does not possess a valid CDL .............................. Controlled Substances. Controlled Substances. 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. Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a CMV. Using a physically unqualified driver .................................................... Using a disqualified driver .................................................................... Using a driver not medically examined and certified ........................... Using a driver not medically examined and certified during the preceding 24 months. Failing to maintain driver qualification file on each driver employed ... Operating a motor vehicle not in accordance with the safety laws, ordinances, and regulations of the jurisdiction in which it is being operated. Scheduling a run which would necessitate the vehicle being operated at speeds in excess of those prescribed. Requiring or permitting a driver to drive without the vehicle’s cargo being properly distributed and adequately secured. Requiring or permitting a property-carrying CMV driver to drive more than 15 hours (Driving in Alaska). Requiring or permitting a property-carrying CMV driver to drive after having been on duty 20 hours (Driving in Alaska). 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). 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). Requiring or permitting a passenger-carrying CMV driver to drive more than 15 hours (Driving in Alaska). Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty 20 hours (Driving in Alaska). 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). 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). Requiring or permitting a property-carrying CMV driver to drive after having been on duty 16 consecutive hours. Requiring or permitting a property-carrying CMV driver to drive without taking an off-duty period of at least 10 consecutive hours prior to driving. Requiring or permitting a property-carrying CMV driver to drive after the end of the 14th hour after coming on duty. Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 60 hours in 7 consecutive days. Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 70 hours in 8 consecutive days. Requiring or permitting a passenger-carrying CMV driver to drive more than 10 hours. Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty 15 hours. Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 70 hours in 8 consecutive days. Failing to require driver to make a record of duty status ..................... False reports of records of duty status ................................................ Failing to require driver to forward within 13 days of completion, the original of the record of duty status. Failing to preserve driver’s record of duty status for 6 months ........... Failing to preserve driver’s records of duty status supporting documents for 6 months. Driver Fitness. Jkt 238001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM Driver Fitness. Driver Fitness. Driver Driver Driver Driver Fitness. Fitness. Fitness. Fitness. Driver Fitness. Unsafe Driving. Unsafe Driving. Vehicle Maintenance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. 21JAP2 3582 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 17—REVISED CRITICAL AND ACUTE REGULATIONS—Continued Acute or critical 49 CFR section 396.3(b) Acute .................. 396.9(c)(2) Acute .................. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Critical ................ 396.11(c) Failing to keep minimum records of inspection and vehicle maintenance. Requiring or permitting the operation of a motor vehicle declared ‘‘out-of-service’’ before repairs were made. Failing to correct Out-of-Service defects listed by driver in a driver vehicle inspection report before the vehicle is operated again. 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. 67 See 72 FR 62293, at 62299 (Nov. 2, 2007) and 73 FR 53483, at 53487 (Sept. 16, 2008). VerDate Sep<11>2014 18:32 Jan 20, 2016 Behavior analysis and safety improvement category (BASIC) Description of violation Jkt 238001 • § 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 68 49 PO 00000 U.S.C. 31144(a)(1). Frm 00022 Fmt 4701 Sfmt 4702 Vehicle Maintenance. Vehicle Maintenance. Vehicle Maintenance. 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 69 A Motor Carrier’s Guide to Improving Highway Safety, FMCSA–ESO–08–003, December 2009. Available at https://www.fmcsa.dot.gov/safetysecurity/eta/index.htm. E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules on-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. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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. PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 3583 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, onroad 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 70 49 U.S.C. 31144(i)(1), (2) and (4). U.S.C. 31144(i)(1)(B). A ‘‘motorcoach’’ is defined for this purpose to be the same as an ‘‘overthe-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). 72 MAP–21 section 32707(b), 126 Stat. 814. 71 49 E:\FR\FM\21JAP2.SGM 21JAP2 3584 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules such 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 All proposed unfit methods: Failure standard option Total number of carriers proposed unfit mstockstill on DSK4VPTVN1PROD with PROPOSALS2 No. 1—Equivalent to 95 and 98 percentiles ........ No. 2—Equivalent to 96 and 99 percentiles ........ Total number of crashes for carriers proposed unfit Associated crash rate per 100 power units (PUs) 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) 3,291 2,124 3.93 479 (3.75) 2,656 (3.94) 156 (4.66) 3,056 1,862 4.39 262 (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 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 73 49 U.S.C. 31144(i)(1), (2) and (4), added by section 32707(a) of MAP–21. 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. 75 See docket FMCSA–2004–18898 titled Comprehensive Safety Analysis 2010 Initiative. 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). VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 administrative proceedings would be available. However, consistent with current procedures, requests for administrative reviews would not automatically stay the unfit determination. E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules for 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. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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 77 The proposed definition of the term Field Administrator includes the term Regional Field Administrator. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 3585 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 78 The carrier will retain the same USDOT number. See Unified Registration System final rule, August 23, 2013 (78 FR 52608). E:\FR\FM\21JAP2.SGM 21JAP2 3586 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules operating 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. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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 outof-service orders entered by FMCSA VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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 forhire 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. PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 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 79 John A. Volpe National Transportation Systems Center, ‘‘Carrier Safety Measurement System (CSMS) Violation Severity Weights,’’ December 2010. E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules elements 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. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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 outof-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 80 166 F.3d 374 (D.C. Cir. 1999). 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). 81 49 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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 Acronyms Definitions and 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.’’ PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 Section 385.5 3587 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 E:\FR\FM\21JAP2.SGM 21JAP2 3588 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules and 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. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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 82 49 PO 00000 U.S.C. 31144(c)(4). Frm 00028 Fmt 4701 Sfmt 4702 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. E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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 PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 3589 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 E:\FR\FM\21JAP2.SGM 21JAP2 3590 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 period 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 Mexicodomiciled 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 longhaul 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 FMCSAadministered 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 83 49 U.S.C. 31144(c). 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. 84 See VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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, Mexicodomiciled 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 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. 86 67 FR 12776, March 19, 2002, as amended at 72 FR 55701, Oct. 1, 2007; 73 FR 76819, Dec. 17, 2008. PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 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, E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules part 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. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 3591 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. 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. 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 D. Part 386 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). 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. 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), PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 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 180.405, and 180.603 of the October 1, 2010, edition of the CFRs. 90 See 49 CFR 180.407, Requirements for test and inspection of specification cargo tanks. 91 See 49 CFR 180.605, Requirements for periodic testing, inspection and repair of portable tanks. 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. 93 See 49 CFR 180.407, Requirements for test and inspection of specification cargo tanks. 94 See https://www.gpo.gov/libraries. Accessed on April 6, 2015. 95 See https://www.gpo.gov/fdsys/pkg/USCODE2013-title49/pdf/USCODE-2013-title49-subtitleIchap5-subchapII-sec521.pdf. Accessed on April 6, 2015. E:\FR\FM\21JAP2.SGM 21JAP2 3592 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules requires 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 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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-ofservice, 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 PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 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 E:\FR\FM\21JAP2.SGM 21JAP2 3593 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules presents 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: Relation Carriers Proposed SFD A ......................................... Current SFD B ............................................ Both Current and Proposed SFD .............. Proposed SFD, But Not Current SFD ....... Current SFD, But Not Proposed SFD ....... Net Gain Attributable to Proposed SFD .... A ....................... B ....................... C ....................... A—C ................. B—C ................. A—B ................. Power units 2,822 1,123 1,017 1,805 106 1,699 42,437 11,365 10,123 32,314 1,242 31,072 Crashes 1,862 441 406 1,456 35 1,421 Crash rate Fatal crashes 4.39 3.88 4.01 4.51 2.82 4.57 55 14 12 43 2 41 Injury crashes 688 180 162 526 18 508 Tow-away crashes 1,119 247 232 887 15 872 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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 96 Volpe National Transportation Center, ‘‘FMCSA Safety Program Effectiveness Measurement: Compliance Review Effectiveness Model, Results for Carriers with Compliance Reviews in Fiscal Year 2008’’. 97 https://ai.fmcsa.dot.gov/PE/ PEReport.aspx?rp=crNat accessed on April 6, 2015. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 improvement similar to that of a compliance review. Given the year-toyear 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 PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 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 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. E:\FR\FM\21JAP2.SGM 21JAP2 3594 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules carriers 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 conservativelylow 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 towaway 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 crash reduction mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Net gain to new SFD Fatal Crashes .............................................................................................................................. Injury Crashes .............................................................................................................................. Tow-Away Crashes ...................................................................................................................... 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 https://www.dot.gov/sites/dot.gov/files/docs/ VSL_Guidance_2014.pdf. This growth factor represents real growth in the median hourly wage VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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 PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 11 128 220 Cost per crash $11,542,000 472,000 74,000 Benefit (millions) $127.0 60.4 13.3 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. E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 3595 TABLE 20—ANNUAL BENEFIT (IN 2017) TO CRASH REDUCTION FROM SWITCH FROM CURRENT TO PROPOSED SFD FOR OPTION 2 (96/99)—Continued Net gain to new SFD Net crash reduction Cost per crash Benefit of the Switch (Millions) .................................................................................................... ........................ ........................ mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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 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. https://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. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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 PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 Benefit (millions) 203.7 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 E:\FR\FM\21JAP2.SGM 21JAP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 3596 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules ‘‘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 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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. PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 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 101 Presidential Memorandum on Regulatory Flexibility, Small Business, and Job Creation, 76 FR 3827 (Jan. 21, 2011). E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules rule. 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 102 2 U.S.C. 1501, et seq. 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 https://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. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 103 Threshold VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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 2.17percent 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 noncompliant 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 PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 3597 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 104 49 U.S.C. 31102(a) and (b). U.S.C. 3501 et seq. 106 44 U.S.C. 3518(c)(1)(B)(ii). 107 5 CFR 1320.4(c). 105 44 E:\FR\FM\21JAP2.SGM 21JAP2 3598 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules operating 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. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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’’ 108 42 109 42 U.S.C. 4321 et seq. U.S.C. 7401 et seq. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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 lowincome 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. PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 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 110 Public Law 108–447, Div. H, 118 Stat. 2809, 3268–3270 (Dec. 8, 2004). E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules millions 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 https:// www.regulations.gov and will include any personal information you provide. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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 https:// 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. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 To submit your comment or reply comment online, go to https:// 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 https://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. List of Subjects 49 CFR Part 350 Grant programs-transportation, Highway safety, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements. PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 3599 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. In consideration of the foregoing, FMCSA proposes to amend title 49, Code of Federal Regulations, chapter III, as follows: PART 350—COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM 1. The authority citation for part 350 continues to read as follows: ■ Authority: 49 U.S.C. 13902, 31101–31104, 31108, 31136, 31140–31141, 31161, 31310– 31311, 31502; and 49 CFR 1.87. 2. Amend § 350.201 by revising paragraph (a) to read as follows: ■ § 350.201 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. * * * * * E:\FR\FM\21JAP2.SGM 21JAP2 3600 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 3. The authority citation for part 365 continues to read as follows: ■ 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. 4. Amend § 365.109 by revising paragraph (a)(3) to read as follows: ■ § 365.109 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. * * * * * ■ 5. Amend § 365.507 by revising paragraph (f) to read as follows: § 365.507 FMCSA action on the application. * * * * * (f) FMCSA may grant standard longhaul operating authority to a Mexicodomiciled 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. PART 385—SAFETY FITNESS PROCEDURES 6. The authority citation for part 385 is revised to read as follows: ■ 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. 7. Amend § 385.1 by revising paragraph (a) to read as follows: ■ mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 385.1 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. * * * * * ■ 8. Amend § 385.3 as follows: ■ a. Add an undesignated introductory paragraph; VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 b. Remove the definitions of ‘‘Preventable accident,’’ ‘‘Reviews,’’ and ‘‘Safety ratings’’; and ■ 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. The additions read as follows: ■ PART 365—RULES GOVERNING APPLICATIONS FOR OPERATING AUTHORITY § 385.3 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. PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 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 severityweighted 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. * * * * * E:\FR\FM\21JAP2.SGM 21JAP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 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 https://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 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 a commercial motor vehicle in interstate or intrastate commerce. ■ 9. Revise § 385.5 to read as follows: § 385.5 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. ■ 10. Revise § 385.7 to read as follows: § 385.7 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 PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 3601 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-ofservice 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. ■ 11. Add § 385.8 to read as follows: § 385.8 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 E:\FR\FM\21JAP2.SGM 21JAP2 3602 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules or 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. ■ 12. Revise § 385.9 to read as follows: mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 385.9 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). VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 (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. ■ 13. Revise § 385.11 to read as follows: § 385.11 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. PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 (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. ■ 14. Add § 385.12 to read as follows: § 385.12 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). ■ 15. Revise § 385.13 to read as follows: § 385.13 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 https:// [FMCSA will provide the Web site in the final rule]. (1) Motor carriers transporting hazardous materials in quantities requiring placarding and motor carriers E:\FR\FM\21JAP2.SGM 21JAP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules transporting 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. ■ 15. Revise § 385.15 to read as follows: § 385.15 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 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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 PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 3603 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. E:\FR\FM\21JAP2.SGM 21JAP2 3604 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules (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. ■ 16. Add § 385.16 to read as follows: mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 385.16 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 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 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 PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 determination unless a stay is requested and granted by the Field Administrator. ■ 17. Revise § 385.17 to read as follows: § 385.17 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. E:\FR\FM\21JAP2.SGM 21JAP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules (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. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 (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. ■ 18. Add § 385.18 to read as follows: § 385.18 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. PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 3605 (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. ■ 19. Amend § 385.19 by revising the section heading and paragraphs (a) and (b) to read as follows: § 385.19 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. * * * * * ■ 20. Add § 385.21 to read as follows: § 385.21 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 E:\FR\FM\21JAP2.SGM 21JAP2 3606 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules FINAL 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]. ■ 21. Amend § 385.101 as follows: ■ a. Add an undesignated introductory paragraph; and ■ b. Revise the definitions of ‘‘Provisional operating authority’’ and ‘‘Safety audit.’’ The addition and revisions read as follows: § 385.101 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 Mexicodomiciled 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. ■ 22. Amend § 385.103 by revising paragraph (e) to read as follows: § 385.103 Safety monitoring system. * * * * * (e) Comprehensive investigation. The FMCSA will conduct a comprehensive investigation on a long-haul Mexicodomiciled carrier within 18 months after the FMCSA issues the carrier provisional operating authority under part 365 of this chapter. ■ 23. Amend § 385.105 by revising paragraphs (a) introductory text and (c) to read as follows: mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 385.105 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: * * * * * VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 (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. ■ 24. Revise § 385.109 to read as follows: § 385.109 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 18month 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. § 385.111, 385.113, and 385.115 and Reserved] [Removed 25. Remove and reserve §§ 385.111, 385.113, and 385.115. ■ 26. Amend § 385.117 by revising paragraphs (b) and (c) to read as follows: ■ § 385.117 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 PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 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. * * * * * § 385.201 [Amended] 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,’’. ■ § 385.203 [Amended] 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,’’. ■ 29. Amend § 385.307 by redesignating paragraphs (a) through (c) as paragraphs (b) through (d) and adding paragraph (a) to read as follows: ■ § 385.307 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. * * * * * § 385.308 [Amended] 30. Amend § 385.308 as follows: 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,’’. ■ 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,’’. ■ c. In paragraph (c), remove the phrase ‘‘a compliance review,’’ and add, in its place, the phrase ‘‘an investigation’’. ■ ■ § 385.317 [Amended] 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’’. ■ § 385.333 ■ [Amended] 32. Amend § 385.333 as follows: E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules a. In paragraph (b), remove the phrase ‘‘ ‘unfit’ after a compliance review’’ and add, in its place, the word ‘‘unfit,’’. ■ 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,’’. ■ 33. Revise § 385.335 to read as follows: ■ § 385.335 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 18month safety-monitoring period prior to removal of the new entrant designation. ■ 34. Amend § 385.407 by revising paragraph (a)(1) to read as follows: § 385.407 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 * * * * * ■ 35. Amend § 385.409 by revising paragraph (c) to read as follows: 36. Amend § 385.413 by revising the section heading and paragraph (a) to read as follows: ■ § 385.413 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. * * * * * ■ 37. Amend § 385.421 by revising paragraphs (a)(3) and (c)(1) to read as follows: § 385.421 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; * * * * * ■ 38. Amend § 385.423 by revising paragraph (a) to read as follows: * mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 385.409 When may a temporary safety permit be issued to a motor carrier? § 385.423 Does a motor carrier have a right to an administrative review of a denial, suspension, or revocation of a safety permit? * * * * * (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. * * * * * VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 * * * * (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 PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 3607 FMCSA’s denial, suspension, or revocation of a safety permit when the motor carrier has been issued a final unfit safety fitness determination. * * * * * ■ 39. Amend § 385.503 by revising paragraph (a) to read as follows: § 385.503 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. * * * * * ■ 40. Amend § 385.607 by revising paragraph (g) to read as follows: § 385.607 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. ■ 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: § 385.701 Definitions. * * * * * Comprehensive investigation. See Compliance review. New entrant registration means the provisional registration under subpart H of this part that FMCSA grants to a nonNorth 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. * * * * * ■ 42. Amend § 385.703 by revising paragraphs (b) and (d) to read as follows: § 385.703 Safety monitoring system. * * * * * (b) Safety monitoring. Each non-North America-domiciled carrier new entrant E:\FR\FM\21JAP2.SGM 21JAP2 3608 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules will be subject to monitoring through inspections. * * * * * (d) Comprehensive investigation. FMCSA will conduct a comprehensive investigation on a non-North Americadomiciled carrier within 18 months after FMCSA issues the carrier a USDOT Number. ■ 43. Amend § 385.705 by revising the introductory text of paragraph (a) and paragraph (c) to read as follows: § 385.705 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. ■ 44. Revise § 385.707 to read as follows: mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 385.707 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 18month new entrant registration period. (c) Unfit safety fitness determination. If FMCSA assigns a non-North Americadomiciled 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. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 §§ 385.709, 385.711, and 385.713 [Removed and Reserved] 45. Remove and reserve §§ 385.709, 385.711, and 385.713. ■ 46. Amend § 385.715 by revising paragraphs (b) and (c) to read as follows: ■ § 385.715 system. Duration of safety monitoring * * * * * (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. * * * * * ■ 47. Revise appendix B to part 385 to read as follows: 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 PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 methodology, a motor carrier’s SFD is determined by either or both of the following: 1.3.2.1 On-Road Safety Data—Safetybased 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 E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 relate 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 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 Motor Carrier Safety Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs). 2.2.2 Violations are instances of noncompliance 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 PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 3609 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 E:\FR\FM\21JAP2.SGM 21JAP2 3610 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 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. 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 safetyevent group failure standard fails this BASIC. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 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 safetyevent group fails that BASIC. 2.4.1 Unsafe Driving BASIC: A motor carrier’s measure is calculated through driver inspections as follows: E:\FR\FM\21JAP2.SGM 21JAP2 EP21JA16.003</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 listed 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-ofservice. 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 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 2–1 TO APPENDIX B TO PART 385—UNSAFE DRIVING FAILURE STANDARDS: STRAIGHT TRUCK SEG- TABLE 2–2 TO APPENDIX B TO PART 385—UNSAFE DRIVING FAILURE STANDARDS: COMBINATION SEG- MENT MENT Safety-event group (number of inspections with unsafe driving violations) BASIC failure standard (equivalent to the 96th percentile) 11–18 .............................. 19–49 .............................. 50+ .................................. 9.64 5.12 1.47 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 Safety-event group (number of inspections with unsafe driving violations) BASIC failure standard (96% threshold) 11–21 .............................. 22–57 .............................. 58–149 ............................ 150+ ................................ 14.21 9.58 6.26 2.80 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. 3611 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/minibuses/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: (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 unit Utilization factor EP21JA16.005</GPH> 1. VMT per Power Unit/20,000. 3. 1. 1. EP21JA16.012</GPH> 2.4.2 HOS Compliance BASIC: A motor carrier’s measure is calculated using driver inspections as follows: VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4725 E:\FR\FM\21JAP2.SGM 21JAP2 EP21JA16.004</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Less Than 20,000 ..................................................................................... 20,000–60,000 .......................................................................................... 60,000–200,000 ........................................................................................ Greater Than 200,000 .............................................................................. No Recent VMT Information ..................................................................... Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 2–5 TO APPENDIX B TO PART 385—HOS COMPLIANCE FAILURE STANDARDS BASIC failure standard (96% threshold) 11–20 .................................. 21–100 ................................ 101–500 .............................. 501+ .................................... 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) 11–20 .................................... 21–100 .................................. 101–500 ................................ 501+ ...................................... 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. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 11–20 .................................... 21–100 .................................. 101–500 ................................ 501+ ...................................... 11–15 .................................... 16–40 .................................... 18:32 Jan 20, 2016 Jkt 238001 2.74 1.39 0.50 0.24 PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 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: 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. BASIC failure standard (99% threshold) 18.79 16.12 11.82 8.91 TABLE 2–8 TO APPENDIX B TO PART 385—HM COMPLIANCE FAILURE STANDARDS Safety-event group (number of inspections) VerDate Sep<11>2014 BASIC failure standard (99% threshold) TABLE 2–7 TO APPENDIX B TO PART 385—VEHICLE MAINTENANCE FAILURE STANDARD Safety-event group (number of inspections) 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. 4.15 3.13 2.2 1.54 BASIC failure standard (99% threshold) 6.87 4.82 TABLE 2–8 TO APPENDIX B TO PART 385—HM COMPLIANCE FAILURE STANDARDS—Continued Safety-event group (number of inspections) 41–100 .................................. E:\FR\FM\21JAP2.SGM 21JAP2 BASIC failure standard (99% threshold) 2.56 EP21JA16.008</GPH> Safety-event group (number of inspections) 2.4.3 Driver Fitness BASIC: A motor carrier’s measure is calculated using driver inspections as follows: EP21JA16.007</GPH> 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. EP21JA16.006</GPH> 3612 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 2–8 TO APPENDIX B TO PART 385—HM COMPLIANCE FAILURE STANDARDS—Continued Safety-event group (number of inspections) BASIC failure standard (99% threshold) 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 3613 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 crossreferenced. TABLE 3–1 TO APPENDIX B TO PART 385—CRITICAL REGULATIONS Behavior analysis and safety improvement category (BASIC) 49 CFR Section Description of violation 173.24(b)(1) ......................... Accepting for transportation or transporting a package that has an identifiable release of a HM to the environment. Loading bulk packaging with an HM which exceeds the maximum weight of lading marked on the specification plate. Offering or accepting an HM for transportation in an unauthorized cargo tank .......... Loading or accepting for transportation two or more materials in a cargo tank motor vehicle which if mixed result in an unsafe condition. Loading HM in a cargo tank if during transportation any part of the tank in contact with the HM would have a dangerous reaction. Failing to instruct a category of employees in HM regulations ................................... Transporting a shipment of HM not accompanied by a properly prepared shipping paper. Loading or unloading a cargo tank without a qualified person in attendance ............ Failing to store, load, or transport HM in accordance with the segregation table ...... Transporting a shipment of HM in a cargo tank that has not been inspected or retested in accordance with § 180.407. Using a driver before the motor carrier has received a negative pre-employment controlled substance test result. Failing to conduct post-accident testing on driver for alcohol ..................................... Failing to conduct post-accident testing on driver for controlled substances ............. 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. 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. Using a driver without a return to duty test ................................................................. Allowing 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 § 382.605. Using a driver who does not possess a valid CDL ..................................................... Using a driver not medically examined and certified ................................................... Using a driver not medically examined and certified during the preceding 24 months. Failing to maintain a driver qualification file on each driver employed ....................... Operating a motor vehicle not in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. Scheduling a run which would necessitate the vehicle being operated at speeds in excess of those prescribed. Requiring or permitting a driver to drive without the vehicle’s cargo being properly distributed and adequately secured. Requiring or permitting a property-carrying CMV driver to drive more than 15 hours (Driving in Alaska). Requiring or permitting a property-carrying CMV driver to drive after having been on duty 20 hours (Driving in Alaska). 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). 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). Requiring or permitting a passenger-carrying CMV driver to drive more than 15 hours (Driving in Alaska). Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty 20 hours (Driving in Alaska). 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). 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). 173.24b(d)(2) ....................... 173.33(a)(1) ......................... 173.33(a)(2) ......................... 173.33(b)(1) ......................... 177.800(c) ............................ 177.817(a) ............................ 177.834(i) ............................. 177.848(d) ............................ 180.407(a) ............................ 382.301(a) ............................ 382.303(a) ............................ 382.303(b) ............................ 382.305(b)(1) ....................... 382.305(b)(2) ....................... 382.309 ................................ 382.503 ................................ 383.3(a)/383.23(a) ............... 391.45(a) .............................. 391.45(b)(1) ......................... 391.51(a) .............................. 392.2 .................................... 392.6 .................................... 392.9(a)(1) ........................... 395.1(h)(1)(i) ........................ 395.1(h)(1)(ii) ....................... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 395.1(h)(1)(iii) ....................... 395.1(h)(1)(iv) ...................... 395.1(h)(2)(i) ........................ 395.1(h)(2)(ii) ....................... 395.1(h)(2)(iii) ....................... 395.1(h)(2)(iv) ...................... VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 HM Compliance. HM Compliance. HM Compliance. HM Compliance. HM Compliance. Driver Fitness. HM Compliance. HM Compliance. HM Compliance. HM Compliance. Controlled Substances. Controlled Substances Controlled Substances. Controlled Substances. Controlled Substances. Controlled Substances. Controlled Substances. Driver Fitness. Driver Fitness. Driver Fitness. Driver Fitness. Unsafe Driving. Unsafe Driving. Vehicle Maintenance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. 3614 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 3–1 TO APPENDIX B TO PART 385—CRITICAL REGULATIONS—Continued Behavior analysis and safety improvement category (BASIC) 49 CFR Section Description of violation 395.1(o) ................................ Requiring or permitting a property-carrying CMV driver to drive after having been on duty 16 consecutive hours. 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. Requiring or permitting a property-carrying CMV driver to drive after the end of the 14th hour after coming on duty. Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 60 hours in 7 consecutive days. Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 70 hours in 8 consecutive days. Requiring or permitting a passenger-carrying CMV driver to drive more than 10 hours.. Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty 15 hours. Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 60 hours in 7 consecutive days. Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 70 hours in 8 consecutive days. Failing to require driver to make a record of duty status ............................................ False reports of records of duty status ........................................................................ Failing to require driver to forward within 13 days of completion, the original of the record of duty status. Failing to preserve driver’s record of duty status for 6 months ................................... Failing to preserve driver’s records of duty status supporting documents for 6 months. Failing to keep minimum records of inspection and vehicle maintenance .................. 395.3(a)(1) ........................... 395.3(a)(2) ........................... 395.3(b)(1) ........................... 395.3(b)(2) ........................... 395.5(a)(1) ........................... 395.5(a)(2) ........................... 395.5(b)(1) ........................... 395.5(b)(2) ........................... 395.8(a) ................................ 395.8(e) ................................ 395.8(i) ................................. 395.8(k)(1) ............................ 395.8(k)(1) ............................ 396.3(b) ................................ 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 HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance. HOS Compliance HOS Compliance. HOS Compliance. HOS Compliance. Vehicle Maintenance. requirements set forth in and controlled by the language of the substantive violations in each section of title 49 of the CFR crossreferenced herein. TABLE 3–2 TO APPENDIX B TO PART 385—ACUTE REGULATIONS Behavior analysis and safety improvement category (BASIC) 49 CFR Section Description of violation 177.801 ......................... 382.115(a) ..................... Accepting for transportation or transporting a forbidden material ........ Failing to implement an alcohol and/or controlled substances testing program (domestic motor carrier). Failing to implement an alcohol and/or controlled substances testing program (foreign motor carrier). Using a driver known to have an alcohol concentration of 0.04 or greater. Using a driver who has refused to submit to an alcohol or controlled substances test required under part 382. Using a driver known to have tested positive for a controlled substance, or to have otherwise violated § 382.215. Failing to implement a random controlled substances and/or an alcohol testing program. 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. Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a CMV. Using a physically unqualified driver ..................................................... Using a disqualified driver ..................................................................... Requiring or permitting the operation of a motor vehicle declared ‘‘out-of-service’’ before repairs were made. Failing to correct out-of-service defects listed by driver in a driver vehicle inspection report before the vehicle is operated again. 382.115(b) ..................... 382.201 ......................... 382.211 ......................... 382.215 ......................... 382.305 ......................... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 383.37(a) ....................... 383.51(a) ....................... 391.11(b)(4) ................... 391.15(a) ....................... 396.9(c)(2) ..................... 396.11(c) ....................... VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 HM Compliance. Controlled Substances. Controlled Substances. Controlled Substances. Controlled Substances. Controlled Substances. Controlled Substances. Driver Fitness. Driver Fitness. Driver Fitness. Driver Fitness. Vehicle Maintenance. Vehicle Maintenance. E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 3615 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 https:// 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. 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. 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 BASICrelated 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. 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 PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 3616 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 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 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 EP21JA16.010</GPH> 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 EP21JA16.009</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 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 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 3617 sufficient 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 Violation severity weight Violation description shown on driver/vehicle examination report given to CMV driver after inspection Violation group description 177.800(d) ........... 177.804(b) ........... Unnecessary delay in HM transportation to destination .......................... Failure to comply with 49 CFR 392.80—Texting while Operating a CMV—Placardable HM. Fail to comply with 392.82—Using Mobile Phone while Operating a CMV—HM. Failure to obey traffic control device (392.2C) ......................................... Headlamps—Failing to dim when required (392.2DH) ............................ Following too close (392.2FC) ................................................................. Improper lane change (392.2LC) ............................................................. Lane Restriction violation (392.2LV) ........................................................ Improper passing (392.2P) ....................................................................... Unlawfully parking and/or leaving vehicle in the roadway (392.2PK) ..... Reckless driving (392.2R) ........................................................................ Railroad Grade Crossing violation (392.2RR) ......................................... Speeding (392.2S) ................................................................................... State/Local Laws—Speeding 6–10 miles per hour over the speed limit (392.2–SLLS2). State/Local Laws—Speeding 11–14 miles per hour over the speed limit (392.2–SLLS3). State/Local Laws—Speeding 15 or more miles per hour over the speed limit (392.2–SLLS4). State/Local Laws—Speeding work/construction zone (392.2–SLLSWZ) State/Local Laws—Operating a CMV while texting (392.2–SLLT) .......... Improper turns (392.2T) ........................................................................... Failure to yield right of way (392.2Y) ....................................................... Scheduling run to necessitate speeding .................................................. Failing to stop at railroad crossing—bus ................................................. HM Related ..................................... Texting ............................................ 1 10 Phone Call ...................................... 10 Dangerous Driving .......................... Misc Violations ................................ Dangerous Driving .......................... Dangerous Driving .......................... Misc Violations ................................ Dangerous Driving .......................... Other Driver Violations ................... Reckless Driving ............................. Dangerous Driving .......................... Speeding Related ........................... Speeding 2 ...................................... 5 3 5 5 3 5 1 10 5 1 4 Speeding 3 ...................................... 7 Speeding 4 ...................................... 10 Speeding 4 ...................................... Texting ............................................ Dangerous Driving .......................... Dangerous Driving .......................... Speeding Related ........................... Dangerous Driving .......................... 10 10 5 5 5 5 177.804(c) ........... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 392.2 392.2 392.2 392.2 392.2 392.2 392.2 392.2 392.2 392.2 392.2 ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... 392.2 ................... 392.2 ................... 392.2 ................... 392.2 ................... 392.2 ................... 392.2 ................... 392.6 ................... 392.10(a)(1) ......... VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 EP21JA16.011</GPH> 49 CFR Section 3618 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 1—UNSAFE DRIVING BASIC VIOLATIONS—Continued Violation severity weight 49 CFR Section Violation description shown on driver/vehicle examination report given to CMV driver after inspection Violation group description 392.10(a)(2) ......... 392.10(a)(3) ......... 392.10(a)(4) ......... 392.14 ................. 392.16 ................. 392.22(a) ............. 392.60(a) ............. 392.62 ................. 392.62(a) ............. 392.71(a) ............. 392.80(a) ............. 392.80(a) ............. 392.82(a)(1) ......... 392.82(a)(2) ......... Failing to stop at railroad crossing—chlorine ........................................... Failing to stop at railroad crossing—placard ........................................... Failing to stop at railroad crossing—Cargo Tank .................................... Failed to use caution for hazardous condition ......................................... Failing to use seat belt while operating CMV .......................................... Failing to use hazard warning flashers .................................................... Unauthorized passenger on board CMV ................................................. Unsafe bus operations ............................................................................. Bus—Standees forward of the standee line ............................................ Using or equipping a CMV with radar detector ....................................... Driving a CMV while Texting .................................................................... Driving a CMV while Texting (390.17DT) ................................................ Using a hand-held mobile telephone while operating a CMV ................. Allowing or requiring driver to use a hand-held mobile telephone while operating a CMV. State/local laws ordinances regulations ................................................... Smoking within 25 feet of HM vehicle ..................................................... Driving a vehicle to transport migrant workers in noncompliance with part 398. Dangerous Driving .......................... Dangerous Driving .......................... Dangerous Driving .......................... Dangerous Driving .......................... Seat Belt ......................................... Other Driver Violations ................... Other Driver Violations ................... Other Driver Violations ................... Other Driver Violations ................... Speeding Related ........................... Texting ............................................ Texting ............................................ Phone Call ...................................... Phone Call ...................................... 5 5 5 5 7 1 1 1 1 5 10 10 10 10 HM Related ..................................... HM Related ..................................... Other Driver Violations ................... 1 1 1 397.3 ................... 397.13 ................. 398.4 ................... TABLE 2—HOS COMPLIANCE BASIC VIOLATIONS Violation severity weight 49 CFR Section Violation description shown on driver/vehicle examination report given to CMV driver after inspection Violation group description 392.2 ................... 392.3 ................... 392.3 ................... State/Local Hours-of-Service (392.2H) .................................................... Operating a CMV while ill/fatigued ........................................................... Fatigue—Operate a passenger-carrying CMV while impaired by fatigue. (392.3–FPASS). Fatigue—Operate a property-carrying CMV while impaired by fatigue. (392.3–FPROP). Illness—Operate a CMV while impaired by illness or other cause. (392.3–I). 15, 20, 70/80 HOS violations (Alaska-Property) ...................................... 15, 20, 70/80 HOS violations (Alaska-Passenger) .................................. Adverse driving conditions violations (Alaska) ......................................... 16 hour rule violation (Property) .............................................................. Requiring or permitting driver to drive more than 11 hours .................... 11 hour rule violation (Property) (395.3A1R) ........................................... Requiring or permitting driver to drive after 14 hours on duty ................ 14 hour rule violation (Property) (395.3A2R) ........................................... Driving beyond 14 hour duty period (Property carrying vehicle) (395.3A2–PROP). Driving beyond 11 hour driving limit in a 14 hour period. (Property Carrying Vehicle) (395.3A3–PROP). Driving beyond 8 hour limit since the end of the last off duty or sleeper period of at least 30 minutes. 60/70—hour rule violation ........................................................................ Driving after 60 hours on duty in a 7 day period. (Property carrying vehicle) (395.3B1–PROP). Driving after 70 hours on duty in a 8 day period. (Property carrying vehicle)(395.3B2). 60/70—hour rule violation (Property) (395.3BR) ..................................... 34-hour restart violation (Property) .......................................................... 10-hour rule violation (Passenger) ........................................................... Driving after 10 hour driving limit (Passenger carrying vehicle) (395.5A1–PASS). 15—hour rule violation (Passenger) ........................................................ Driving after 15 hours on duty (Passenger carrying vehicle) (395.5A2– PASS). 60/70—hour rule violation (Passenger) ................................................... Driving after 60 hours on duty in a 7 day period. (Passenger carrying vehicle) (395.5B1–PASS). Driving after 70 hours on duty in a 8 day period. (Passenger carrying vehicle) (395.5B2–PASS). Driver’s record of Duty Status (general/form and manner) ..................... No driver’s record of duty status .............................................................. False report of driver’s record of duty status ........................................... Driver’s record of duty status not current ................................................ Hours .............................................. Jumping OOS/Driving Fatigued ...... Jumping OOS/Driving Fatigued ...... 7 10 10 Jumping OOS/Driving Fatigued ...... 10 Jumping OOS/Driving Fatigued ...... 10 392.3 ................... 392.3 ................... 395.1(h)(1) ........... 395.1(h)(2) ........... 395.1(h)(3) ........... 395.1(o) ............... 395.3(a)(1) ........... 395.3 ................... 395.3(a)(2) ........... 395.3 ................... 395.3 ................... 395.3 ................... 395.3(a)(3)(ii) ....... 395.3(b) ............... 395.3(b)(1) ........... 395.3(b)(2) ........... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 395.3(b) ............... 395.3(c) ............... 395.5(a)(1) ........... 395.5(a)(1) ........... 395.5(a)(2) ........... 395.5(a)(2) ........... 395.5(b) ............... 395.5(b)(1) ........... 395.5(b)(2) ........... 395.8 ................... 395.8(a) ............... 395.8(e) ............... 395.8(f)(1) ............ VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 Hours Hours Hours Hours Hours Hours Hours Hours Hours .............................................. .............................................. .............................................. .............................................. .............................................. .............................................. .............................................. .............................................. .............................................. 7 7 7 7 7 7 7 7 7 Hours .............................................. 7 Hours .............................................. 7 Hours .............................................. Hours .............................................. 7 7 Hours .............................................. 7 Hours Hours Hours Hours .............................................. .............................................. .............................................. .............................................. 7 7 7 7 Hours .............................................. Hours .............................................. 7 7 Hours .............................................. Hours .............................................. 7 7 Hours .............................................. 7 Other Log/Form & Manner ............. Incomplete/Wrong Log .................... False Log ........................................ Incomplete/Wrong Log .................... 1 5 7 5 E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 3619 TABLE 2—HOS COMPLIANCE BASIC VIOLATIONS—Continued Violation severity weight 49 CFR Section Violation description shown on driver/vehicle examination report given to CMV driver after inspection Violation group description 395.8(k)(2) ........... 395.13(d) ............. 395.15(b) ............. 395.15(c) ............. 395.15(f) .............. Driver failing to retain previous 7 days’ logs ............................................ Driving after being declared out-of-service .............................................. Onboard recording device information requirements not met ................. Onboard recording device improper form and manner ........................... Onboard recording device failure and driver failure to reconstruct duty status. On-board recording device information not available .............................. Onboard recording device does not display required information ........... Violation of HOS regulations—migrant workers ...................................... Incomplete/Wrong Log .................... Jumping OOS/Driving Fatigued ...... Incomplete/Wrong Log .................... Other Log/Form & Manner ............. Incomplete/Wrong Log .................... 5 10 5 1 5 EOBR Related ................................ Other Log/Form & Manner ............. Hours .............................................. 1 1 7 395.15(g) ............. 395.15(i)(5) .......... 398.6 ................... TABLE 3—DRIVER FITNESS BASIC VIOLATIONS Violation severity weight 49 CFR Section Violation description shown on driver/vehicle examination report given to CMV driver after inspection Violation group description 177.816 ............... 383.21 ................. 383.21(a) ............. 383.23(a)(2) ......... 383.25(a) ............. 383.25(a)(1) ......... 383.25(a)(2) ......... Driver training requirements ..................................................................... Operating a CMV with more than one driver’s license ............................ Operating a CMV with more than one driver’s license ............................ Operating a CMV without a CDL ............................................................. Operating on learner’s permit without CDL holder (383.23(c)) ............... Operating on learner’s permit without CDL holder (383.23(c)(1)) ........... Operating on learner’s permit without valid driver’s license (383.23(c)(2)). Driving a CMV (CDL) while disqualified ................................................... 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). 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). Driving 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). 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). Operating a CMV with improper CDL group ............................................ No double/triple trailer endorsement on CDL .......................................... No passenger vehicle endorsement on CDL ........................................... No tank vehicle endorsement on CDL ..................................................... No HM endorsement on CDL .................................................................. No school bus endorsement on CDL ....................................................... License (CDL)—Operating a school bus without a school bus endorsement as described in 383.93(b)(5) (383.93B5LCDL). Violating airbrake restriction ..................................................................... Failing to comply with Imminent Hazard OOS Order .............................. Unqualified driver ..................................................................................... Interstate driver under 21 years of age ................................................... Driver lacking physical qualification(s) ..................................................... Driver lacking valid license for type vehicle being operated ................... Driver operating a CMV without proper endorsements or in violation of restrictions. (391.11B5–DEN). Driver does not have a valid operator’s license for the CMV being operated. (391.11B5–DNL). Driver disqualified from operating CMV ................................................... Driving a CMV while disqualified ............................................................. Driving a CMV while disqualified. Suspended for non-safety-related reason and in the state of driver’s license issuance. (391.15A–NSIN). Driving a CMV while disqualified. Suspended for a non-safety-related reason and outside the state of driver’s license issuance (391.15A– NSOUT).. Driving a CMV while disqualified. Suspended for safety-related or unknown reason and in the state of driver’s license issuance. (391.15A–SIN). 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). Driver not in possession of medical certificate ........................................ Operating a property-carrying vehicle without possessing a valid medical certificate (391.41A–F).. General Driver Qualification ........... License-related: High ...................... License-related: High ...................... License-related: High ...................... License-related: High ...................... License-related: High ...................... License-related: High ...................... 4 8 8 8 8 8 8 License-related: High ...................... License-related: Medium ................ 8 5 License-related: Low ....................... 1 License-related: High ...................... 8 License-related: Medium ................ 5 License-related: License-related: License-related: License-related: License-related: License-related: License-related: ...................... ...................... ...................... ...................... ...................... ...................... ...................... 8 8 8 8 8 8 8 License-related: High ...................... Fitness/Jumping OOS ..................... License-related: High ...................... General Driver Qualification ........... Physical ........................................... License-related: High ...................... License-related: High ...................... 8 10 8 4 2 8 8 License-related: High ...................... 8 License-related: High ...................... License-related: High ...................... License-related: Medium ................ 8 8 5 License-related: Low ....................... 1 License-related: High ...................... 8 License-related: Medium ................ 5 Medical Certificate .......................... Medical Certificate .......................... 1 1 383.51(a) ............. 383.51(a) ............. 383.51(a) ............. 383.51(a)A ........... 383.51(a) ............. 383.91(a) ............. 383.93(b)(1) ......... 383.93(b)(2) ......... 383.93(b)(3) ......... 383.93(b)(4) ......... 383.93(b)(5) ......... 383.93(b)(5) ......... 383.95(a) ............. 386.72(b) ............. 391.11 ................. 391.11(b)(1) ......... 391.11(b)(4) ......... 391.11(b)(5) ......... 391.11(b)(5) ......... 391.11(b)(5) ......... 391.11(b)(7) ......... 391.15(a) ............. 391.15(a) ............. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 391.15(a) ............. 391.15(a) ............. 391.15(a) ............. 391.41(a) ............. 391.41(a) ............. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM High High High High High High High 21JAP2 3620 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 3—DRIVER FITNESS BASIC VIOLATIONS—Continued Violation severity weight 49 CFR Section Violation description shown on driver/vehicle examination report given to CMV driver after inspection Violation group description 391.41(a) ............. Operating a property-carrying vehicle without possessing a valid medical certificate. Previously Cited (391.41A–FPC). Operating a passenger-carrying vehicle without possessing a valid medical certificate. (391.41A–P). Improper medical examiner’s certificate form .......................................... Expired medical examiner’s certificate ..................................................... No valid medical waiver in driver’s possession ....................................... Driver not physically qualified .................................................................. No doctor’s certificate in possession ....................................................... Medical Certificate .......................... 1 Medical Certificate .......................... 1 Medical Certificate .......................... Medical Certificate .......................... Medical Certificate .......................... Physical ........................................... Medical Certificate .......................... 1 1 1 2 1 391.41(a) ............. 391.43(h) ............. 391.45(b) ............. 391.49(j) .............. 398.3(b) ............... 398.3(b)(8) ........... TABLE 4—VEHICLE MAINTENANCE BASIC VIOLATIONS Violation severity weight 49 CFR Section Violation description shown on driver/vehicle examination report given to CMV driver after inspection Violation group description 385.103(c) ........... 392.2 ................... 392.7 ................... 392.7(a) ............... 392.7(b) ............... 392.8 ................... 392.9 ................... 392.9(a) ............... 392.9(a)(1) ........... 392.9(a)(2) ........... 392.9(a)(3) ........... 392.22(b) ............. 392.33 ................. 392.62(c)(1) ......... 392.62(c)(2) ......... 392.62(c)(3) ......... 392.63 ................. 393.9 ................... Fail to display current CVSA decal—Provisional Authority ..................... Wheel (Mud) Flaps missing or defective (392.2WC) ............................... No pre-trip inspection ............................................................................... Driver failing to conduct pre-trip inspection ............................................. Driver failing to conduct a pre-trip inspection of intermodal equipment .. Failing to inspect/use emergency equipment .......................................... Failing to secure load ............................................................................... Failing to secure load ............................................................................... Failing to secure cargo ............................................................................. Failing to secure vehicle equipment ........................................................ Driver’s view/movement is obstructed ..................................................... Failing/improper placement of warning devices ....................................... Operating CMV with lamps/reflectors obscured ...................................... Bus—baggage/freight restricts driver operation ....................................... Bus—Exit(s) obstructed by baggage/freight ............................................ Passengers not protected from falling baggage ...................................... Pushing/towing a loaded bus ................................................................... Inoperative required lamps ....................................................................... 4 1 4 4 4 2 1 1 1 1 1 2 6 1 1 1 10 2 393.9 ................... 393.9 ................... 393.9 ................... 393.9(a) ............... Inoperative Inoperative Inoperative Inoperative 393.11 ................. 393.11 ................. No/defective lighting devices/reflective devices/projected ....................... Lower retroreflective sheeting/reflex reflectors—Trailer manufactured on or after 12/1/1993 (393.11LR). No retroreflective sheeting/reflex reflectors—Trailer manufactured on or after 12/1/1993 (393.11N). Retroreflective sheeting not affixed as required—Trailer manufactured on or after 12/1/1993 (393.11RT). No side retroreflective sheeting/reflex reflectors—Trailer manufactured on or after 12/1/1993 (393.11S). No retro reflective sheeting or reflex reflectors on mud flaps—Truck Tractor manufactured on or after 7/1/1997 (393.11TL). No retroreflective sheeting/reflex reflectors—Truck Tractor manufactured on or after 7/1/1997 (393.11TT). No upper body corners retroreflective sheeting/reflex reflectors—Truck Tractor manufactured on or after 7/1/1997 (393.11TU). No upper reflex reflectors retroreflective sheeting/reflex reflectors— Trailer manufactured on or after 12/1/1993 (393.11UR). Retroreflective tape not affixed as required for Trailers manufactured after 12/1/1993. No retroreflective sheeting or reflex reflective material as required for vehicles manufactured on or after 12/1/1993. No side retroreflective sheeting or reflex reflective material as required for vehicles manufactured before 12/1/1993. No lower rear retroreflective sheeting or reflex reflective material as required for vehicles manufactured before 12/1/1993. No upper rear retroreflective sheeting or reflex reflective material as required for vehicles manufactured before 12/1/1993. Improper side placement of retroreflective sheeting or reflex reflective material as required for vehicles manufactured on or after 12/1/1993. Inspection Reports .......................... Windshield/Glass/Markings ............. Inspection Reports .......................... Inspection Reports .......................... Inspection Reports .......................... Emergency Equipment ................... General Securement ....................... General Securement ....................... General Securement ....................... General Securement ....................... General Securement ....................... Cab, Body, Frame .......................... Lighting ........................................... General Securement ....................... General Securement ....................... General Securement ....................... Towing Loaded Bus ........................ Clearance Identification Lamps/ Other. Lighting ........................................... Lighting ........................................... Lighting ........................................... Clearance Identification Lamps/ Other. Reflective Sheeting ......................... Reflective Sheeting ......................... Reflective Sheeting ......................... 3 Reflective Sheeting ......................... 3 Reflective Sheeting ......................... 3 Reflective Sheeting ......................... 3 Reflective Sheeting ......................... 3 Reflective Sheeting ......................... 3 Reflective Sheeting ......................... 3 Reflective Sheeting ......................... 3 Reflective Sheeting ......................... 3 Reflective Sheeting ......................... 3 Reflective Sheeting ......................... 3 Reflective Sheeting ......................... 3 Reflective Sheeting ......................... 3 393.11 ................. 393.11 ................. 393.11 ................. 393.11 ................. 393.11 ................. 393.11 ................. 393.11 ................. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 393.13(a) ............. 393.13(b) ............. 393.13(c)(1) ......... 393.13(c)(2) ......... 393.13(c)(3) ......... 393.13(d)(1) ......... VerDate Sep<11>2014 18:32 Jan 20, 2016 head lamps (393.9H) ............................................................. tail lamp (393.9T) .................................................................. turn signal (393.9TS) ............................................................. required lamps ....................................................................... Jkt 238001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 6 6 6 2 3 3 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 3621 TABLE 4—VEHICLE MAINTENANCE BASIC VIOLATIONS—Continued Violation severity weight 49 CFR Section Violation description shown on driver/vehicle examination report given to CMV driver after inspection Violation group description 393.13(d)(2) ......... Improper lower rear placement of retroreflective sheeting or reflex reflective material requirements for vehicles manufactured before 12/1/ 1993. Upper rear retroreflective sheeting or reflex reflective material as required for vehicles manufactured on or after 12/1/1993. No/defective lamp/reflector-tow-away operation ...................................... No/defective lamps-towing unit-tow-away operation ................................ No/defective tow-away lamps on rear unit ............................................... Inoperative/defective hazard warning lamp ............................................. Required lamp not powered by vehicle electricity ................................... Reflective Sheeting ......................... 3 Reflective Sheeting ......................... 3 Lighting ........................................... Lighting ........................................... Lighting ........................................... Lighting ........................................... Clearance Identification Lamps/ Other. Lighting ........................................... Lighting ........................................... Lighting ........................................... Lighting ........................................... Lighting ........................................... Lighting ........................................... Lighting ........................................... Lighting ........................................... Lighting ........................................... Reflective Sheeting ......................... Other Vehicle Defect ...................... Other Vehicle Defect ...................... Brakes, All Others ........................... Brakes, All Others ........................... Brakes, All Others ........................... Brakes, All Others ........................... Brakes, All Others ........................... 6 6 6 6 2 6 6 6 6 6 6 6 6 6 3 3 3 4 4 4 4 4 Brakes, Brakes, Brakes, Brakes, Brakes, Brakes, Brakes, ........................... ........................... ........................... ........................... ........................... ........................... ........................... 4 4 4 4 4 4 4 Brakes, All Others ........................... Brakes, All Others ........................... 4 4 Brakes, All Others ........................... Brakes, All Others ........................... 4 4 Brakes, All Others ........................... 4 Brakes, All Others ........................... Brakes, All Others ........................... Brakes, All Others ........................... 4 4 4 Brakes, All Others ........................... Brakes, All Others ........................... 4 4 Brakes, All Others ........................... Brakes, All Others ........................... Brakes, All Others ........................... Brakes, All Others ........................... Brakes, All Others ........................... Brakes, All Others ........................... Brakes Out of Adjustment .............. Brakes Out of Adjustment .............. Brakes, All Others ........................... Brakes, All Others ........................... Brakes, All Others ........................... 4 4 4 4 4 4 4 4 4 4 4 Brakes, Brakes, Brakes, Brakes, Brakes, Brakes, 4 4 4 4 4 4 393.13(d)(3) ......... 393.17 ................. 393.17(a) ............. 393.17(b) ............. 393.19 ................. 393.23 ................. 393.24(a) ............. 393.24(b) ............. 393.24(b) ............. 393.24(c) ............. 393.24(d) ............. 393.25(a) ............. 393.25(b) ............. 393.25(e) ............. 393.25(f) .............. 393.26 ................. 393.28 ................. 393.30 ................. 393.40 ................. 393.41 ................. 393.42 ................. 393.42(a) ............. 393.42(a) ............. 393.42(a) ............. 393.43 ................. 393.43(a) ............. 393.43(d) ............. 393.44 ................. 393.45 ................. 393.45 ................. 393.45 ................. 393.45(b)(2) ......... 393.45(b)(2) ......... 393.45(b)(2) ......... 393.45(b)(2) ......... 393.45(b)(3) ......... 393.45(d) ............. 393.45(d) ............. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 393.45(d) ............. 393.45(d) ............. 393.45(d) ............. 393.47 ................. 393.47(a) ............. 393.47(b) ............. 393.47(c) ............. 393.47(d) ............. 393.47(e) ............. 393.47(f) .............. 393.47(g) ............. 393.48(a) ............. 393.48(a) ............. 393.48(a) ............. 393.48(a) ............. 393.48(a) ............. 393.48(b)(1) ......... 393.50 ................. 393.50(a) ............. VerDate Sep<11>2014 Noncompliance with headlamp requirements .......................................... Noncompliant fog/driving lamps ............................................................... Noncompliant fog or driving lamps (393.24BR) ....................................... Improper headlamp mounting .................................................................. Improper head/auxiliary/fog lamp aiming ................................................. Improper lamp mounting .......................................................................... Lamps are not visible as required ............................................................ Lamp not steady burning ......................................................................... Stop lamp violations ................................................................................. Requirements for reflectors ...................................................................... Improper or no wiring protection as required ........................................... Improper battery installation ..................................................................... Inadequate brake system on a CMV ....................................................... No or defective parking brake system on CMV ....................................... No brakes as required .............................................................................. Brake—Missing required brake. (393.42A–BM) ...................................... Brake—All wheels not equipped with brakes as required. (393.42A– BMAW). Brake—Missing on a trailer steering axle. (393.42A–BM–TSA) .............. No/improper breakaway or emergency braking ....................................... No/improper tractor protection valve ........................................................ No or defective automatic trailer brake .................................................... No/defective bus front brake line protection ............................................ Brake tubing and hose adequacy ............................................................ Brake Tubing and Hose Adequacy—Connections to Power Unit (393.45PC). Brake Tubing and Hose Adequacy Under Vehicle (393.45UV) .............. Failing to secure brake hose/tubing against mechanical damage (393.45(a)(4)). Failing to secure brake hose/tubing against mechanical damage .......... Brake Hose or Tubing Chafing and/or Kinking—Connection to Power Unit (393.45B2PC). Brake Hose or Tubing Chafing and/or Kinking Under Vehicle (393.45B2UV). Failing to secure brake hose/tubing against high temperatures .............. Brake connections with leaks/constrictions .............................................. Brake Connections with Constrictions—Connection to Power Unit (393.45DCPC). Brake Connections with Constrictions Under Vehicle (393.45DCUV) ..... Brake Connections with Leaks—Connection to Power Unit (393.45DLPC). Brake Connections with Leaks Under Vehicle (393.45DLUV) ................ Inadequate/contaminated brake linings ................................................... Inadequate brakes for safe stopping ....................................................... Mismatched brake chambers on same axle ............................................ Mismatched slack adjuster effective length ............................................. Insufficient brake linings ........................................................................... Clamp/Roto-Chamber type brake(s) out of adjustment ........................... Wedge type brake(s) out of adjustment ................................................... Insufficient drum/rotor thickness .............................................................. Inoperative/defective brakes .................................................................... Brakes—Hydraulic Brake Caliper movement exceeds 1/8″ (0.125″) (3.175 mm) (393.48A–BCM). Brakes—Missing or Broken Components (393.48A–BMBC) ................... Brakes—Rotor (disc) metal-to-metal contact (393.48A–BRMMC) .......... Brakes—Severe rusting of brake rotor (disc) (393.48A–BSRFS) ........... Defective brake limiting device ................................................................ Inadequate reservoir for air/vacuum brakes ............................................ Failing to have sufficient air/vacuum reserve .......................................... 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 All All All All All All All All All All All All All E:\FR\FM\21JAP2.SGM Others Others Others Others Others Others Others Others Others Others Others Others Others 21JAP2 ........................... ........................... ........................... ........................... ........................... ........................... 3622 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 4—VEHICLE MAINTENANCE BASIC VIOLATIONS—Continued 49 CFR Section Violation description shown on driver/vehicle examination report given to CMV driver after inspection 393.50(b) ............. 393.50(c) ............. 393.50(d) ............. 393.51 ................. 393.52(a)(1) ......... 393.53(a) ............. Failing to equip vehicle—prevent reservoir air/vacuum leak ................... No means to ensure operable check valve ............................................. No or defective air reservoir drain valve .................................................. No or defective brake warning device ..................................................... Insufficient braking force as percent of GVW or GCW ............................ Automatic brake adjuster CMV manufactured on or after 10/20/1993— hydraulic brake. Automatic brake adjuster CMV manufactured on or after 10/20/1994— air brake. Brake adjustment indicator CMV manufactured on or after 10/20/ 1994—external automatic adjustment. ABS—all CMVs manufactured on or after 3/1/1999 with hydraulic brakes. ABS—malfunction indicators for hydraulic brake system ........................ ABS—all tractors manufactured on or after 3/1/1997 air brake system .. ABS—all other CMVs manufactured on or after 3/1/1998 air brake system. ABS—malfunctioning circuit/signal—truck tractor manufactured on or after 3/1/1997, single-unit CMV manufactured on or after 3/1/1998. ABS—malfunctioning indicator to cab of towing CMV manufactured on or after 3/1/2001. No or Defective ABS Malfunction Indicator for towed vehicles on vehicles manufactured after February 2001. ABS—malfunctioning lamps towed CMV manufactured on or after 3/1/ 1998. Windshield—Obstructed (393.60EWS) .................................................... Windshields required ................................................................................ Damaged or discolored windshield .......................................................... Glazing permits less than 70 percent of light .......................................... Inadequate or missing truck side windows .............................................. Inadequate or missing truck side windows (393.61(a)) ........................... No or defective bus emergency exits—Bus manufactured on or after 9/ 1/1994. No or defective bus emergency exits—Bus manufactured on or after 9/ 1/1973 but before 9/1/1994. No or defective bus emergency exit windows—Bus manufactured before 9/1/1973. No/defective Safety glass/push-out window—Bus manufactured before 9/1/1973. No or inadequate bus emergency exit marking—Bus manufactured on or after 9/1/1973. Fuel system requirements ........................................................................ Improper location of fuel system .............................................................. Improper securement of fuel tank ............................................................ Improper fuel line protection .................................................................... Fuel tank requirement violations .............................................................. Fuel tank fill pipe cap missing .................................................................. Improper fuel tank safety vent ................................................................. Compressed natural gas (CNG) fuel container does not conform to regulations. Fifth wheel ................................................................................................ Defective coupling device—improper tracking ......................................... Defective/improper fifth wheel assemblies ............................................... Defective/improper fifth wheel assembly upper half (393.70B1II) ........... Defective fifth wheel locking mechanism ................................................. Defective coupling devices for full trailer ................................................. No/improper safety chains/cables for full trailer ....................................... Improper safety chain attachment ............................................................ Improper coupling driveaway/tow-away operation ................................... Prohibited towing connection/device ........................................................ Towbar requirement violations ................................................................. No/improper safety chains/cables for towbar ........................................... Tires/tubes (general) ................................................................................ Flat tire or fabric exposed ........................................................................ Tire—ply or belt material exposed ........................................................... Tire—tread and/or sidewall separation .................................................... Tire—flat and/or audible air leak .............................................................. Tire—cut exposing ply and/or belt material ............................................. Tire—front tread depth less than 4⁄32 of inch ........................................... Tire—other tread depth less than 2⁄32 of inch .......................................... 393.53(b) ............. 393.53(c) ............. 393.55(a) ............. 393.55(b) ............. 393.55(c)(1) ......... 393.55(c)(2) ......... 393.55(d)(1) ......... 393.55(d)(2) ......... 393.55(d)(3) ......... 393.55(e) ............. 393.60 ................. 393.60(b) ............. 393.60(c) ............. 393.60(d) ............. 393.61 ................. 393.61 ................. 393.62(a) ............. 393.62(b) ............. 393.62(c) ............. 393.62(d) ............. 393.62(e) ............. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 393.65 ................. 393.65(b) ............. 393.65(c) ............. 393.65(f) .............. 393.67 ................. 393.67(c)(7) ......... 393.67(c)(8) ......... 393.68 ................. 393.70 ................. 393.70(a) ............. 393.70(b) ............. 393.70(b) ............. 393.70(b)(2) ......... 393.70(c) ............. 393.70(d) ............. 393.70(d)(8) ......... 393.71 ................. 393.71(g) ............. 393.71(h) ............. 393.71(h)(10) ....... 393.75 ................. 393.75(a) ............. 393.75(a)(1) ......... 393.75(a)(2) ......... 393.75(a)(3) ......... 393.75(a)(4) ......... 393.75(b) ............. 393.75(c) ............. VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4702 Violation severity weight Violation group description Brakes, Brakes, Brakes, Brakes, Brakes, Brakes, All All All All All All ........................... ........................... ........................... ........................... ........................... ........................... 4 4 4 4 4 4 Brakes, All Others ........................... 4 Brakes, All Others ........................... 4 Brakes, All Others ........................... 4 Brakes, All Others ........................... Brakes, All Others ........................... Brakes, All Others ........................... 4 4 4 Brakes, All Others ........................... 4 Brakes, All Others ........................... 4 Brakes, All Others ........................... 4 Brakes, All Others ........................... 4 Windshield/Glass/Markings Windshield/Glass/Markings Windshield/Glass/Markings Windshield/Glass/Markings Windshield/Glass/Markings Windshield/Glass/Markings Windshield/Glass/Markings ............. ............. ............. ............. ............. ............. ............. 1 1 1 1 1 1 1 Windshield/Glass/Markings ............. 1 Windshield/Glass/Markings ............. 1 Windshield/Glass/Markings ............. 1 Windshield/Glass/Markings ............. 1 Fuel Systems Fuel Systems Fuel Systems Fuel Systems Fuel Systems Fuel Systems Fuel Systems Other Vehicle .................................. .................................. .................................. .................................. .................................. .................................. .................................. Defect ...................... 1 1 1 1 1 1 1 3 Coupling Devices ............................ Coupling Devices ............................ Coupling Devices ............................ Coupling Devices ............................ Coupling Devices ............................ Coupling Devices ............................ Coupling Devices ............................ Coupling Devices ............................ Coupling Devices ............................ Coupling Devices ............................ Coupling Devices ............................ Coupling Devices ............................ Tires ................................................ Tires ................................................ Tires ................................................ Tires ................................................ Tires ................................................ Tires ................................................ Tires ................................................ Tires ................................................ 3 3 3 3 3 3 3 3 3 3 3 3 8 8 8 8 8 8 8 8 E:\FR\FM\21JAP2.SGM Others Others Others Others Others Others 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 3623 TABLE 4—VEHICLE MAINTENANCE BASIC VIOLATIONS—Continued Violation severity weight 49 CFR Section Violation description shown on driver/vehicle examination report given to CMV driver after inspection Violation group description 393.75(d) ............. 393.75(e) ............. 393.75(f) .............. 393.75(f) .............. 393.75(h)(1) ......... 393.75(h) ............. 393.76 ................. 393.77 ................. 393.77(b)(11) ....... 393.77(b)(5) ......... 393.78 ................. 393.79 ................. 393.80 ................. 393.81 ................. 393.82 ................. 393.83(a) ............. 393.83(b) ............. 393.83(c) ............. 393.83(d) ............. 393.83(e) ............. 393.83(f) .............. 393.83(g) ............. 393.83(h) ............. 393.84 ................. 393.86 ................. 393.86(a)(1) ......... Tire—bus regrooved/recap on front wheel .............................................. Tire—regrooved on front wheel of truck/truck-tractor .............................. Tire—exceeding weight rating of tire ....................................................... Weight carried exceeds tire load limit (393.75(f)(1)) ............................... Tire underinflated (393.75(f)(2)) ............................................................... Tire underinflated ..................................................................................... Sleeper berth requirement violations ....................................................... Defective and/or prohibited heaters ......................................................... Bus heater fuel tank location ................................................................... Protection of operating controls from tampering ...................................... Windshield wipers inoperative/defective .................................................. Defroster/Defogger inoperative ................................................................ Failing to equip vehicle with two rear vision mirrors ................................ Horn inoperative ....................................................................................... Speedometer inoperative/inadequate ...................................................... Exhaust system location .......................................................................... Exhaust discharge fuel tank/filler tube ..................................................... Improper exhaust—bus (gasoline) ........................................................... Improper exhaust—bus (diesel) ............................................................... Improper exhaust discharge (not rear of cab) ......................................... Improper exhaust system repair (patch/wrap) ......................................... Exhaust leak under truck cab and/or sleeper .......................................... Exhaust system not securely fastened .................................................... Inadequate floor condition ........................................................................ No or improper rearend protection ........................................................... Rear impact guards—all trailers/semitrailers manufactured on or after 1/26/98. Impact guard width—all trailers/semitrailers manufactured on or after 1/ 26/98. Impact guard height—all trailers/semitrailers manufactured on or after 1/26/98. Impact guard rear—all trailers/semitrailers manufactured on or after 1/ 26/98. Cross-sectional vertical height—all trailers/semitrailers manufactured on or after 1/26/98. Rear Impact Guards—motor vehicles manufactured after 12/31/52, see exceptions. Warning flag required on projecting load ................................................. Warning flag required on projecting load ................................................. Improper warning flag placement ............................................................. Improperly located television receiver ...................................................... Bus driveshaft not properly protected ...................................................... Bus—no or obscure standee line ............................................................. Bus—improper aisle seats ....................................................................... Bus—not equipped with seatbelt ............................................................. Seats not secured in conformance with FMVSS ..................................... Truck not equipped with seatbelt ............................................................. No/discharged/unsecured fire extinguisher .............................................. No/discharged/unsecured fire extinguisher .............................................. No spare fuses as required ...................................................................... No spare fuses as required (393.95(c)) ................................................... No/insufficient warning devices ................................................................ HM—restricted emergency warning device ............................................. Failure to prevent cargo shifting .............................................................. Failure to prevent cargo shifting .............................................................. Leaking/spilling/blowing/falling cargo ....................................................... Failure to prevent cargo shifting .............................................................. Improper securement system (tiedown assemblies) ............................... Insufficient means to prevent movement ................................................. Insufficient means to prevent forward movement .................................... Insufficient means to prevent rearward movement .................................. Insufficient means to prevent lateral movement ...................................... Tiedown assembly with inadequate working load limit ............................ Insufficient means to prevent vertical movement .................................... No equivalent means of securement ....................................................... Inadequate/damaged securement device/system .................................... Damaged securement system/tiedowns .................................................. Damaged vehicle structures/anchor points .............................................. Damaged dunnage/bars/blocking-bracing ................................................ Knotted tiedown ........................................................................................ Tires ................................................ Tire vs. Load ................................... Tire vs. Load ................................... Tire vs. Load ................................... Tire vs. Load ................................... Tire vs. Load ................................... Other Vehicle Defect ...................... Other Vehicle Defect ...................... Other Vehicle Defect ...................... Other Vehicle Defect ...................... Windshield/Glass/Markings ............. Windshield/Glass/Markings ............. Other Vehicle Defect ...................... Other Vehicle Defect ...................... Other Vehicle Defect ...................... Exhaust Discharge .......................... Exhaust Discharge .......................... Exhaust Discharge .......................... Exhaust Discharge .......................... Exhaust Discharge .......................... Exhaust Discharge .......................... Exhaust Discharge .......................... Exhaust Discharge .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... 8 3 3 3 3 3 3 3 3 3 1 1 3 3 3 1 1 1 1 1 1 1 1 2 2 2 Cab, Body, Frame .......................... 2 Cab, Body, Frame .......................... 2 Cab, Body, Frame .......................... 2 Cab, Body, Frame .......................... 2 Cab, Body, Frame .......................... 2 Warning Flags ................................. Warning Flags ................................. Warning Flags ................................. Cab, Body, Frame .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... Emergency Equipment ................... Emergency Equipment ................... Emergency Equipment ................... Emergency Equipment ................... Emergency Equipment ................... Emergency Equipment ................... General Securement ....................... General Securement ....................... Improper Load Securement ............ General Securement ....................... Tiedown .......................................... Failure to Prevent Movement ......... Failure to Prevent Movement ......... Failure to Prevent Movement ......... Failure to Prevent Movement ......... Tiedown .......................................... Failure to Prevent Movement ......... Improper Load Securement ............ Securement Device ........................ Securement Device ........................ Securement Device ........................ Securement Device ........................ Tiedown .......................................... 1 1 1 2 2 2 2 2 2 2 2 2 2 2 2 2 1 1 7 1 3 3 3 3 3 3 3 7 1 1 1 1 3 393.86(a)(2) ......... 393.86(a)(3) ......... 393.86(a)(4) ......... 393.86(a)(5) ......... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 393.86(b)(1) ......... 393.87 ................. 393.87(a) ............. 393.87(b) ............. 393.88 ................. 393.89 ................. 393.90 ................. 393.91 ................. 393.93(a) ............. 393.93(a)(3) ......... 393.93(b) ............. 393.95(a) ............. 393.95(a)(1)(i) ..... 393.95(b) ............. 393.95(b) ............. 393.95(f) .............. 393.95(g) ............. 393.100 ............... 393.100(a) ........... 393.100(b) ........... 393.100(c) ........... 393.102(a) ........... 393.102(a)(1) ....... 393.102(a)(1)(i) ... 393.102(a)(1)(ii) ... 393.102(a)(1)(iii) .. 393.102(a)(2) ....... 393.102(b) ........... 393.102(c) ........... 393.104(a) ........... 393.104(b) ........... 393.104(c) ........... 393.104(d) ........... 393.104(f)(1) ........ VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 3624 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 4—VEHICLE MAINTENANCE BASIC VIOLATIONS—Continued Violation severity weight Violation description shown on driver/vehicle examination report given to CMV driver after inspection Violation group description 393.104(f)(2) ........ 393.104(f)(3) ........ 393.104(f)(4) ........ mstockstill on DSK4VPTVN1PROD with PROPOSALS2 49 CFR Section Use of tiedown with improper repair. ....................................................... Loose/unfastened tiedown. ...................................................................... No edge protection for tiedowns .............................................................. (393.104F4R) ........................................................................................... No/improper front end structure/headerboard .......................................... Cargo not immobilized or secured ........................................................... No means to prevent cargo from rolling .................................................. Cargo without direct contact/prevention from shifting .............................. Insufficient aggregate working load limit .................................................. Failing to meet minimum tiedown requirements ...................................... Insufficient tiedowns; without headerboard/blocking ................................ Insufficient tiedowns; with headerboard/blocking ..................................... Large/odd-shaped cargo not adequately secured ................................... Tiedown not adjustable by driver ............................................................. No/improper front end structure ............................................................... Insufficient height for front-end structure ................................................. Insufficient width for front-end structure ................................................... Front-end structure with large opening(s) ................................................ No/improper securement of logs .............................................................. Short, over 1⁄3 length past structure ......................................................... Short, insufficient/no tiedowns ................................................................. Short, tiedowns improperly positioned ..................................................... Short, no center stakes/high log not secured .......................................... Short, length; improper securement ......................................................... No/improper lumber/building materials. securement ............................... Improper placement of bundles ............................................................... Insufficient protection against lateral movement ...................................... Insufficient/improper arrangement of tiedowns ........................................ No/improper securement of metal coils ................................................... Coil/vertical improper securement ............................................................ Coils, rows, eyes vertical—improper securement .................................... Coil/eye crosswise improper securement ................................................ X-pattern on coil(s) with eyes crosswise ................................................. Coil with eye lengthwise-improper securement ....................................... Coils, rows, eyes length—improper securement. .................................... No protection against shifting/tipping ....................................................... No/improper securement of paper rolls ................................................... Rolls vertical—improper securement ....................................................... Rolls vertical/split—improper securement ................................................ Rolls vertical/stacked—improper securement .......................................... Rolls crosswise—improper securement ................................................... Rolls crosswise/stacked load—improperly secured ................................. Rolls length—improper securement ......................................................... Rolls lengthwise/stacked—improper securement .................................... Improper securement—rolls on flatbed/curtain-sided vehicle .................. No/improper securement of concrete pipe ............................................... Insufficient working load limit—concrete pipes ........................................ Improper blocking of concrete pipe .......................................................... Improper arrangement of concrete pipe .................................................. Improper securement, up to 45 in. diameter ........................................... Improper securement, greater than 45 inch diameter ............................. Fail to ensure intermodal container secured ........................................... Damaged/missing tiedown/securement device ........................................ Lower corners of container not on vehicle/structure ................................ All corners of chassis not secured ........................................................... Front and rear of container not secured independently .......................... Empty container not properly positioned ................................................. Empty container, more than 5 foot overhang .......................................... Empty container—not properly secured ................................................... No/improper securement of vehicles ....................................................... Vehicle not secured—front and rear ........................................................ Tiedown(s) not affixed to mounting points ............................................... Tiedown(s) not over/around wheels ......................................................... No/improper heavy vehicle/machinery securement ................................. Item not properly prepared for transport .................................................. Improper restraint/securement of item ..................................................... No/improper securement of crushed vehicles ......................................... Prohibited use of synthetic webbing ........................................................ Insufficient tiedowns per stack cars ......................................................... Insufficient means to retain loose parts ................................................... Tiedown .......................................... Tiedown .......................................... Tiedown .......................................... 3 3 3 Securement Device ........................ Failure to Prevent Movement ......... Failure to Prevent Movement ......... Failure to Prevent Movement ......... Tiedown .......................................... General Securement ....................... Tiedown .......................................... Tiedown .......................................... Failure to Prevent Movement ......... Securement Device ........................ General Securement ....................... Securement Device ........................ Securement Device ........................ Securement Device ........................ General Securement ....................... Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ General Securement ....................... Improper Load Securement ............ Failure to Prevent Movement ......... Tiedown .......................................... General Securement ....................... Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Failure to Prevent Movement ......... General Securement ....................... Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ General Securement ....................... Tiedown .......................................... Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ General Securement ....................... Securement Device ........................ Securement Device ........................ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ General Securement ....................... Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ General Securement ....................... Improper Load Securement ............ Improper Load Securement ............ General Securement ....................... Securement Device ........................ Tiedown .......................................... Improper Load Securement ............ 1 3 3 3 3 1 3 3 3 1 1 1 1 1 1 7 7 7 7 7 1 7 3 3 1 7 7 7 7 7 7 3 1 7 7 7 7 7 7 7 7 1 3 7 7 7 7 1 1 1 7 7 7 7 7 1 7 7 7 1 7 7 1 1 3 7 393.106(a) ........... 393.106(b) ........... 393.106(c)(1) ....... 393.106(c)(2) ....... 393.106(d) ........... 393.110 ............... 393.110(b) ........... 393.110(c) ........... 393.110(d) ........... 393.112 ............... 393.114 ............... 393.114(b)(1) ....... 393.114(b)(2) ....... 393.114(d) ........... 393.116 ............... 393.116(d)(1) ....... 393.116(d)(2) ....... 393.116(d)(3) ....... 393.116(d)(4) ....... 393.116(e) ........... 393.118 ............... 393.118(b) ........... 393.118(d) ........... 393.118(d)(3) ....... 393.120 ............... 393.120(b)(1) ....... 393.120(b)(2) ....... 393.120(c)(1) ....... 393.120(c)(2) ....... 393.120(d)(1) ....... 393.120(d)(4) ....... 393.120(e) ........... 393.122 ............... 393.122(b) ........... 393.122(c) ........... 393.122(d) ........... 393.122(e) ........... 393.122(f) ............ 393.122(g) ........... 393.122(h) ........... 393.122(i) ............ 393.124 ............... 393.124(b) ........... 393.124(c) ........... 393.124(d) ........... 393.124(e) ........... 393.124(f) ............ 393.126 ............... 393.126(b) ........... 393.126(c)(1) ....... 393.126(c)(2) ....... 393.126(c)(3) ....... 393.126(d)(1) ....... 393.126(d)(2) ....... 393.126(d)(4) ....... 393.128 ............... 393.128(b)(1) ....... 393.128(b)(2) ....... 393.128(b)(3) ....... 393.130 ............... 393.130(b) ........... 393.130(c) ........... 393.132 ............... 393.132(b) ........... 393.132(c) ........... 393.132(c)(5) ....... VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 3625 TABLE 4—VEHICLE MAINTENANCE BASIC VIOLATIONS—Continued Violation severity weight 49 CFR Section Violation description shown on driver/vehicle examination report given to CMV driver after inspection Violation group description 393.134 ............... 393.134(b)(1) ....... 393.134(b)(2) ....... 393.134(b)(3) ....... 393.136 ............... 393.136(b) ........... 393.136(c)(1) ....... 393.136(d) ........... 393.136(e) ........... 393.136(f) ............ 393.201(a) ........... 393.201(b) ........... 393.201(c) ........... 393.201(d) ........... 393.201(e) ........... 393.203 ............... 393.203(a) ........... 393.203(b) ........... 393.203(c) ........... 393.203(d) ........... 393.203(e) ........... 393.205(a) ........... 393.205(b) ........... 393.205(c) ........... 393.207(a) ........... 393.207(b) ........... 393.207(c) ........... 393.207(d) ........... 393.207(e) ........... 393.207(f) ............ 393.207(g) ........... 393.209(a) ........... 393.209(b) ........... 393.209(c) ........... 393.209(d) ........... 393.209(e) ........... 396.1 ................... 396.3(a)(1) ........... 396.3(a)(1) ........... 396.3(a)(1) ........... 396.3(a)(1) ........... 396.3(a)(1) ........... 396.3(a)(1) ........... 396.3(a)(1) ........... 396.5 ................... 396.5(a) ............... 396.5(a) ............... No/improper securement of roll/hook container ....................................... No blocking against forward movement ................................................... Container not secured to front of vehicle ................................................. Rear of container not properly secured ................................................... No/improper securement of large boulders ............................................. Improper placement/positioning of boulder .............................................. Boulder not secured with chain ................................................................ Improper securement—cubic boulder ...................................................... Improper securement—non-cubic boulder with stable base ................... Improper securement—non-cubic boulder with unstable base ............... Frame cracked/loose/sagging/broken ...................................................... Bolts securing cab broken/loose/missing ................................................. Frame rail flange improperly bent/cut/notched ........................................ Frame accessories improperly attached .................................................. Prohibited holes drilled in frame rail flange ............................................. Cab/body parts requirements violations ................................................... Cab door missing/broken ......................................................................... Cab/body improperly secured to frame .................................................... Hood not securely fastened ..................................................................... Cab seats not securely mounted ............................................................. Cab front bumper missing/unsecured/protruding ..................................... Wheel/rim cracked or broken ................................................................... Stud/bolt holes elongated on wheels ....................................................... Wheel fasteners loose and/or missing ..................................................... Axle positioning parts defective/missing .................................................. Adjustable axle locking pin missing/disengaged ...................................... Leaf spring assembly defective/missing .................................................. Coil spring cracked and/or broken ........................................................... Torsion bar cracked and/or broken .......................................................... Air suspension pressure loss ................................................................... No/defective air suspension exhaust control ........................................... Steering wheel not secured/broken ......................................................... Excessive steering wheel lash ................................................................. Loose steering column ............................................................................. Steering system components worn/welded/missing ................................ Power steering violations ......................................................................... Must have knowledge of and comply with regulations ............................ Inspection/repair and maintenance parts and accessories ..................... Brakes (general) (396.3A1B) ................................................................... Brake out of adjustment (396.3A1BA) ..................................................... Brake-air compressor violation (396.3A1BC) ........................................... Brake-defective brake drum (396.3A1BD) ............................................... Brake-reserve system pressure loss (396.3A1BL) .................................. Tires (general) (396.3A1T) ....................................................................... Excessive oil leaks ................................................................................... Failing to ensure that vehicle is properly lubricated ................................ Hubs—No visible or measurable lubricant showing in the hub—inner wheel (396.5A–HNLIW). Hubs—No visible or measurable lubricant showing in the hub—outer wheel (396.5A–HNLOW). Oil and/or grease leak .............................................................................. Hubs—Oil and/or Grease Leaking from hub—inner wheel (396.5B– HLIW). Hubs—oil and/or Grease Leaking from hub—outer wheel (396.5B– HLOW). Hubs—Wheel seal leaking—inner wheel (396.5B–HWSLIW) ................. Hubs—Wheel seal leaking—outer wheel (396.5B–HWSLOW) ............... Unsafe operations forbidden .................................................................... Operating an OOS vehicle ....................................................................... Failure to correct defects noted on inspection report .............................. No or inadequate driver vehicle inspection report ................................... No reviewing driver’s signature on Driver Vehicle Inspection Report (DVIR). Operating a CMV without periodic inspection .......................................... Operating a motor vehicle not in compliance with parts and accessories regulations—migrant workers (398.5). Failure to inspect or maintain motor vehicle to ensure safe and proper operating condition—migrant workers. Vehicle access requirements violations ................................................... Inadequate maintenance of driver access ............................................... General Securement ....................... Failure to Prevent Movement ......... Improper Load Securement ............ Improper Load Securement ............ General Securement ....................... Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Improper Load Securement ............ Cab, Body, Frame .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... Cab, Body, Frame .......................... Wheels, Studs, Clamps, Etc ........... Wheels, Studs, Clamps, Etc ........... Wheels, Studs, Clamps, Etc ........... Suspension ..................................... Suspension ..................................... Suspension ..................................... Suspension ..................................... Suspension ..................................... Suspension ..................................... Suspension ..................................... Steering Mechanism ....................... Steering Mechanism ....................... Steering Mechanism ....................... Steering Mechanism ....................... Steering Mechanism ....................... Inspection Reports .......................... Wheels, Studs, Clamps, Etc ........... Brakes, All Others ........................... Brakes Out of Adjustment .............. Brakes, All Others ........................... Brakes, All Others ........................... Brakes, All Others ........................... Tires ................................................ Other Vehicle Defect ...................... Other Vehicle Defect ...................... Wheels, Studs, Clamps, Etc ........... 1 3 7 7 1 7 7 7 7 7 2 2 2 2 2 2 2 2 2 2 2 2 2 2 7 7 7 7 7 7 7 6 6 6 6 6 4 2 4 4 4 4 4 8 3 3 2 Wheels, Studs, Clamps, Etc ........... 2 Other Vehicle Defect ...................... Wheels, Studs, Clamps, Etc ........... 3 2 Wheels, Studs, Clamps, Etc ........... 2 Wheels, Studs, Clamps, Etc ........... Wheels, Studs, Clamps, Etc ........... Other Vehicle Defect ...................... Vehicle Jumping OOS .................... Inspection Reports .......................... Inspection Reports .......................... Inspection Reports .......................... 2 2 3 10 4 4 4 Inspection Reports .......................... Other Vehicle Defect ...................... 4 3 Inspection Reports .......................... 4 Cab, Body, Frame .......................... Cab, Body, Frame .......................... 2 2 396.5(a) ............... 396.5(b) ............... 396.5(b) ............... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 396.5(b) ............... 396.5(b) ............... 396.5(b) ............... 396.7 ................... 396.9(c)(2) ........... 396.9(d)(2) ........... 396.11 ................. 396.13(c) ............. 396.17(c) ............. 398.5(a) ............... 398.7 ................... 399.207 ............... 399.211 ............... VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 3626 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 5—HAZARDOUS MATERIALS COMPLIANCE BASIC VIOLATIONS Violation severity weight 49 CFR section Violation description shown on driver/vehicle examination report given to CMV driver after inspection Violation group description 171.2(a) ............... 171.2(b) ............... Failure to comply with HM regulations ..................................................... Failure to comply with the requirements for HM transportation (including labeling and handling). Representing a package./container for HM not meeting specs .............. Transporting HM not in accordance with this part ................................... Cargo tank does not comply with HM Regulations ................................. Representing vehicle with HM, none present .......................................... No shipping paper provided by offeror .................................................... HM not distinguished from non-HM ......................................................... HM description not printed legibly in English ........................................... HM description contains abbreviation or code ......................................... Additional information not after HM basic description ............................. Failure to list page number of pages ....................................................... Emergency Response phone number not listed ...................................... Improper shipping name (172.202(a)(1)) ................................................. Improper hazard class (172.202(a)(2)) .................................................... Wrong or no ID number (172.202(a)(3) ................................................... No packing group listed ........................................................................... Total quantity not listed ............................................................................ Basic description not in proper sequence ................................................ Total quantity improper location ............................................................... Non Hazardous Material entered with class or ID# ................................. Exemption number not listed ................................................................... Limited quantity not shown ...................................................................... Hazardous substance entry missing ........................................................ RQ not on shipping paper ........................................................................ Radionuclide name not on shipping paper .............................................. No indication for Highway Route Controlled Quantity of Class 7 ‘‘HRCQ’’ on shipping paper. No RAM physical or chemical form ......................................................... No RAM activity ........................................................................................ No RAM label category ............................................................................ No RAM transport index ........................................................................... No fissile radioactive entry ....................................................................... No DOE/NRC package approval notation ............................................... Export package or foreign made package not marked with IAEA Certificate. No Exclusive Use notation ....................................................................... No empty packaging noted ...................................................................... No qt/nqt for anhydrous ammonia ........................................................... No notation for QT/NQT for Liquified Petroleum Gas ............................. No technical name for nos entry .............................................................. No Poison Inhalation Hazard and/or Hazard Zone .................................. No ‘‘hot’’ on shipping paper ..................................................................... No temperature controls noted for Class 4.1 or Class 5.2 ...................... Hazardous waste manifest not as required ............................................. Failing to comply with marking requirements .......................................... Non-bulk package marking—general ....................................................... No ID number on side/ends of non-bulk package—large quantity of single HM. No proper shipping name and/or ID# marking on non-bulk .................... No technical name on non-bulk ............................................................... No special permit number on non-bulk package ..................................... No consignee/consignor on non-bulk ....................................................... Marking requirements bulk packagings ................................................... No ID number (portable and cargo tank) ................................................. Bulk package marking incorrect size ....................................................... No special permit number on bulk package ............................................ Prohibited HM marking on package ......................................................... Package marking not durable, English, or print ....................................... Marking not on sharply contrasting color ................................................. Marking obscured by label or attachments .............................................. Marking not away from other marking ..................................................... Package marked with unauthorized abbreviation .................................... No gross weight on radioactive materials package greater than 50 KG Radioactive materials package not marked ‘‘Type A or B’’ ..................... No package orientation arrows ................................................................ Prohibited use of orientation arrows ........................................................ No ‘‘inhalation hazard’’ on package ......................................................... No ‘‘poison’’ on non-bulk plastic package ................................................ HM Other ........................................ HM Other ........................................ 2 2 Markings—HM ................................ Package Integrity—HM ................... Package Integrity—HM ................... Markings—HM ................................ Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... 5 8 8 5 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 Documentation—HM Documentation—HM Documentation—HM Documentation—HM Documentation—HM Documentation—HM Documentation—HM ....................... ....................... ....................... ....................... ....................... ....................... ....................... 3 3 3 3 3 3 3 Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ 3 3 3 3 3 3 3 3 3 5 5 5 Markings—HM ................................ Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Documentation—HM ....................... Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Cargo Protection—HM .................... Cargo Protection—HM .................... Markings—HM ................................ Markings—HM ................................ 5 3 3 3 5 5 5 3 5 5 5 5 5 5 5 5 4 4 5 5 171.2(c) ............... 171.2(f) ................ 171.2(g) ............... 171.2(k) ............... 172.200(a) ........... 172.201(a)(1) ....... 172.201(a)(2) ....... 172.201(a)(3) ....... 172.201(a)(4) ....... 172.201(c) ........... 172.201(d) ........... 172.202(a)(2) ....... 172.202(a)(3) ....... 172.202(a)(1) ....... 172.202(a)(4) ....... 172.202(a)(5) ....... 172.202(b) ........... 172.202(c) ........... 172.202(e) ........... 172.203(a) ........... 172.203(b) ........... 172.203(c)(1) ....... 172.203(c)(2) ....... 172.203(d)(1) ....... 172.203(d)(10) ..... 172.203(d)(2) 172.203(d)(3) 172.203(d)(4) 172.203(d)(5) 172.203(d)(6) 172.203(d)(7) 172.203(d)(8) ....... ....... ....... ....... ....... ....... ....... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 172.203(d)(9) ....... 172.203(e) ........... 172.203(h)(1) ....... 172.203(h)(2) ....... 172.203(k) ........... 172.203(m) .......... 172.203(n) ........... 172.203(o) ........... 172.205 ............... 172.300 ............... 172.301 ............... 172.301(a) ........... 172.301(a)(1) ....... 172.301(b) ........... 172.301(c) ........... 172.301(d) ........... 172.302 ............... 172.302(a) ........... 172.302(b) ........... 172.302(c) ........... 172.303(a) ........... 172.304(a)(1) ....... 172.304(a)(2) ....... 172.304(a)(3) ....... 172.304(a)(4) ....... 172.308(a) ........... 172.310(a) ........... 172.310(b) ........... 172.312(a)(2) ....... 172.312(b) ........... 172.313(a) ........... 172.313(b) ........... VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 3627 TABLE 5—HAZARDOUS MATERIALS COMPLIANCE BASIC VIOLATIONS—Continued Violation description shown on driver/vehicle examination report given to CMV driver after inspection 172.316(a) ........... 172.320(a) ........... 172.322(b) ........... 172.324 ............... 172.325(a) ........... 172.325(a) ........... 172.325(b) ........... 172.326(a) ........... 172.326(b) ........... 172.326(c)(1) ....... 172.326(c)(2) ....... 172.328 ............... 172.328(a) ........... 172.328(b) ........... 172.328(c) ........... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 49 CFR section Other regulated material non-bulk package not marked ......................... Class 1 package not marked with ex-number ......................................... No marine pollutant marking on bulk packaging ..................................... Non-bulk hazardous substance not marked ............................................ No ‘‘hot’’ marking for bulk elevated temperature (172.325) .................... Elevated temperature not marked ‘‘Hot’’ .................................................. Improperly marked molten aluminum/sulphur .......................................... Portable tank not marked with proper shipping name or ID# .................. No portable tank owner or lessee marking .............................................. No ID number marking on vehicle carrying portable tank ....................... Shipper failed to provide ID number to carrier ........................................ No ID number displayed on a cargo tank ................................................ Shipper failed to provide or affix ID number for cargo tank .................... Cargo tank not marked for class 2 .......................................................... No quenched and tempered steel (QT)/other than quenched and tempered steel (NQT) marked on cargo tank (MC 330/331). Fail to mark manual remote shutoff device ............................................. Tank car tank (non cylinder) not marked as required ............................. Motor vehicle with tank not marked ......................................................... Markings for other bulk packages ............................................................ Required ID markings displayed .............................................................. Prohibited ID number marking ................................................................. ID # displayed on Class 7/Class 1/Dangerous or Subsidiary placard ..... ID numbers not properly displayed .......................................................... Failing to display ID numbers on compartment cargo tank in sequence Carrier failed to replace missing ID number ............................................ Labeling requirements .............................................................................. Package/containment not labeled as required ......................................... Prohibited labeling .................................................................................... Failing to affix additional labels when required ........................................ No label for subsidiary hazard ................................................................. Display of class number on label ............................................................. Subsidiary labeling for radioactive materials ........................................... Subsidiary labeling for class 1 (explosive) materials ............................... Radioactive material label requirement .................................................... Radioactive material package-2 labels on opposite sides ....................... Failed to label radioactive material properly ............................................ Class 7 label—no activity/activity not in SI units ..................................... Mixed package not properly labeled ........................................................ Failed to properly label consolidated package ........................................ Label placement not as required ............................................................. Multiple label placement not as required ................................................. Label not on contrasting background or no border ................................. Failed to display duplicate label as required ........................................... Label obscured by marking or attachment .............................................. Prohibited placarding ................................................................................ Sign or device could be confused with HM placard ................................ Placards not in table 1 or 2 ...................................................................... Vehicle not placarded as required ........................................................... Dangerous placard violation ..................................................................... No placard for poison inhalation hazard .................................................. Not placarded for RAM and Corrosive when required ............................ Placard for subsidiary dangerous when wet ............................................ Failed to provide placards shipper ........................................................... Placards not affixed to vehicle ................................................................. Not placardarded for RAM highway route controlled quantity ................. Freight container not placarded ............................................................... Bulk package offered without placard ...................................................... Bulk package with residue of HM not properly placarded ....................... Placard not visible from direction it faces ................................................ Placard not securely affixed or attached ................................................. Placard not clear of appurtenance ........................................................... Placard improper location ........................................................................ Placard not reading horizontally ............................................................... Placard damaged, deteriorated, or obscured .......................................... Placard not on contrasting background or border ................................... Placard does not meet specifications ...................................................... Emergency Response (ER) information not available ............................. Emergency response information missing ............................................... Form and manner of emergency response information .......................... 172.328(d) ........... 172.330(a)(2) ....... 172.330(b) ........... 172.331 ............... 172.332 ............... 172.334 ............... 172.334(a) ........... 172.336(b) ........... 172.336(c)(1) ....... 172.338 ............... 172.400 ............... 172.400(a) ........... 172.401 ............... 172.402 ............... 172.402(a) ........... 172.402(b) ........... 172.402(d) ........... 172.402(e) ........... 172.403(a) ........... 172.403(f) ............ 172.403(g) ........... 172.403(g)(2) ....... 172.404(a) ........... 172.404(b) ........... 172.406(a)(1) ....... 172.406(c) ........... 172.406(d) ........... 172.406(e) ........... 172.406(f) ............ 172.502(a)(1) ....... 172.502(a)(2) ....... 172.504 ............... 172.504(a) ........... 172.504(b) ........... 172.505(a) ........... 172.505(b) ........... 172.505(c) ........... 172.506(a) ........... 172.506(a)(1) ....... 172.507 ............... 172.512(a) ........... 172.514(a) ........... 172.514(b) ........... 172.516(a) ........... 172.516(c)(1) ....... 172.516(c)(2) ....... 172.516(c)(4) ....... 172.516(c)(5) ....... 172.516(c)(6) ....... 172.516(c)(7) ....... 172.519 ............... 172.600(c) ........... 172.602(a) ........... 172.602(b) ........... VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00067 Fmt 4701 Sfmt 4702 Violation group description Markings—HM Markings—HM Markings—HM Markings—HM Markings—HM Markings—HM Markings—HM Markings—HM Markings—HM Markings—HM Markings—HM Markings—HM Markings—HM Markings—HM Markings—HM Violation severity weight ................................ ................................ ................................ ................................ ................................ ................................ ................................ ................................ ................................ ................................ ................................ ................................ ................................ ................................ ................................ 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Markings—HM ................................ Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 3 3 3 E:\FR\FM\21JAP2.SGM 21JAP2 3628 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 5—HAZARDOUS MATERIALS COMPLIANCE BASIC VIOLATIONS—Continued Violation severity weight 49 CFR section Violation description shown on driver/vehicle examination report given to CMV driver after inspection Violation group description 172.602(c)(1) ....... 172.604(a) ........... 173.24(a) ............. 173.24(b) ............. 173.24(b)(1) ......... 173.24(b) ............. 173.24b(d)(2) ....... 173.24(c) ............. 173.24(f)(1) .......... 173.25(a) ............. 173.25(c) ............. Maintenance/accessibility of emergency response information ............... Failing to provide an emergency response phone number ..................... Non-bulk package mixed contents requirements ..................................... Failed to meet general package requirements ........................................ Release of HM from package .................................................................. Bulk package outage or filling limit requirements .................................... Exceed max weight of rating on spec plate ............................................. Unauthorized packaging ........................................................................... Closures for packagings must not be open or leaking ............................ Failed to meet overpack conditions ......................................................... Failure to label and package poison properly, when transported with edible material. Empty package improper transportation .................................................. Loading/unloading transport vehicles ....................................................... IM101/102 bottom outlets prohibited ........................................................ IM101/102 bottom outlets authorized ....................................................... Cargo tank general requirements ............................................................ HM in cargo tank which had dangerous reaction with cargo tank .......... Cargo tank not marked with design or maximum allowable working pressure (MAWP). Intermediate bulk container requirements ................................................ Liquid filled IBC with Ullage over 98% ..................................................... Intermediate bulk container (IBC) not secured to or within vehicle ......... General packages requirements for poisons in cylinders ........................ Forbidden explosives, offering or transporting ......................................... General packaging requirements for explosives ...................................... Cargo or portable tank class 2 exceeds maximum filling density ........... Residential gas tank not secure in transport ........................................... Fail to mark inlet, outlet, pressure relief device, or pressure control valve of cryogenic tanks. No or Improper One Way Travel Time (OWTT) marking on cryogenic cargo tank. General Type A package failing to meet additional design requirements Transporting limited quantity-radioactive material exceeds 0.5 millirem/ hour. No instructions for exclusive use packaging-low specific activity ............ Exclusive use low specific activity (LSA) radioactive material not marked ‘‘Radioactive-LSA’’. No instructions for exclusive use packaging-low specific activity ............ Exclusive use low specific activity (LSA) radioactive material not marked ‘‘Radioactive-LSA’’. Exceeded activity limits Type A or Type B package ............................... Exceeding radiation level limitations allowed for transport ...................... Exceeding radiation level allowed for transport of RAM under exclusive use provisions. External temperature of package exceeds 50 degrees Celsius (122 degrees F). External temperature of package exceeds 85 degrees Celsius (185 degrees F). Radioactive contamination exceeds limits ............................................... RAM transport storage violation ............................................................... General RAM transport requirements ...................................................... Accepting/transporting HM not prepared properly ................................... Failure to comply with FMCSR 49 CFR part 383 and 49 CFR parts 390 through 397. Shipping papers required ......................................................................... No shipping papers (carrier) .................................................................... Shipper certification missing (when required) .......................................... Shipping paper accessibility ..................................................................... No placards/markings when required ...................................................... Load securement of different HM packages ............................................ Package not secure in vehicle ................................................................. Package not loaded according to orientation marks ............................... Smoking while loading or unloading ........................................................ Using a tool likely to cause damage to the closure of any package or container. Attendance of cargo tank—(load or unload) ............................................ Manholes and valves not closed or leak free .......................................... Securing specification 106a or 110a tanks .............................................. Improper loading-specification 56, 57, IM101, and IM102 ...................... Documentation—HM ....................... Documentation—HM ....................... Cargo Protection—HM .................... Load Securement—HM .................. Load Securement—HM .................. Load Securement—HM .................. Load Securement—HM .................. Load Securement—HM .................. Load Securement—HM .................. Markings—HM ................................ Markings—HM ................................ 3 3 4 10 10 10 10 10 10 5 5 Cargo Protection—HM .................... Cargo Protection—HM .................... Fire Hazard—HM ............................ Fire Hazard—HM ............................ Cargo Protection—HM .................... Cargo Protection—HM .................... Cargo Protection—HM .................... 4 4 6 6 4 4 4 Package Integrity—HM ................... Load Securement—HM .................. Load Securement—HM .................. HM Other ........................................ Fire Hazard—HM ............................ HM Other ........................................ Load Securement—HM .................. Fire Hazard—HM ............................ Package Integrity—HM ................... 8 10 10 2 6 2 10 6 8 Markings—HM ................................ 5 Package Integrity—HM ................... Cargo Protection—HM .................... 8 4 Cargo Protection—HM .................... Markings—HM ................................ 4 5 Cargo Protection—HM .................... Markings—HM ................................ 4 5 Load Securement—HM .................. Cargo Protection—HM .................... Load Securement—HM .................. 10 4 10 Cargo Protection—HM .................... 4 Cargo Protection—HM .................... 4 Load Securement—HM .................. Cargo Protection—HM .................... Cargo Protection—HM .................... HM Other ........................................ HM Other ........................................ 10 4 4 2 2 Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Documentation—HM ....................... Markings—HM ................................ Fire Hazard—HM ............................ Load Securement—HM .................. Cargo Protection—HM .................... Fire Hazard—HM ............................ Load Securement—HM .................. 3 3 3 3 5 6 10 4 6 10 Cargo Protection—HM .................... Cargo Protection—HM .................... Cargo Protection—HM .................... Fire Hazard—HM ............................ 4 4 4 6 173.29(a) ............. 173.30 ................. 173.32(h)(3) ......... 173.32(h)(3)(i) ..... 173.33(a) ............. 173.33(b) ............. 173.33(c)(2) ......... 173.35(a) ............. 173.35(d) ............. 173.35(f)(2) .......... 173.40 ................. 173.54 ................. 173.60 ................. 173.315(a) ........... 173.315(j)(3) ........ 173.318(b)(10) ..... 173.318(g) ........... 173.412 ............... 173.421(a) ........... 173.427(a)(6)(iv) .. 173.427(a)(6)(vi) .. 173.427(a)(6)(iv) .. 173.427(a)(vi) ...... 173.431 ............... 173.441(a) ........... 173.441(b) ........... 173.442(b)(1) ....... 173.442(b)(2) ....... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 173.443(a) ........... 173.447 ............... 173.448 ............... 177.801 ............... 177.804 ............... 177.817 ............... 177.817(a) ........... 177.817(b) ........... 177.817(e) ........... 177.823(a) ........... 177.834 ............... 177.834(a) ........... 177.834(b) ........... 177.834(c) ........... 177.834(f) ............ 177.834(i) ............ 177.834(j) ............ 177.834(m)(1) ...... 177.834(n) ........... VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 3629 TABLE 5—HAZARDOUS MATERIALS COMPLIANCE BASIC VIOLATIONS—Continued mstockstill on DSK4VPTVN1PROD with PROPOSALS2 49 CFR section Violation description shown on driver/vehicle examination report given to CMV driver after inspection Violation group description 177.835 ............... 177.835(a) ........... 177.835(c) ........... 177.835(j) ............ 177.837 ............... 177.837(c) ........... 177.837(d) ........... 177.838 ............... 177.839 ............... 177.840 ............... 177.840(g) ........... 177.840(o) ........... 177.840(s) ........... 177.841 ............... 177.841(e) ........... 177.842(a) ........... 177.842(b) ........... 177.842(d) ........... 177.848(d) ........... 177.848(f) ............ 177.870(b) ........... 177.870(c) ........... 178.245–41 .......... 178.245–51 .......... 178.245–6(a)1 ..... 178.245–6(b)1 ..... 178.251–41 .......... 178.251–7(b)1 ..... 178.255–14 ......... 178.255–4 ........... 178.255–71 .......... 178.270–11 .......... 178.270–11(d)(1)1 178.270–141 ........ 178.270–41 .......... 178.270–61 .......... 178.270–81 .......... 178.270–91 .......... 178.336–1 ........... 178.336–13 ......... 178.336–17 ......... 178.336–17(a) ..... 178.336–9(a) ....... 178.336–9(c) ....... 178.337–10(a) ..... 178.337–11(a) ..... 178.337–13 ......... 178.337–17(a) ..... 178.337–8(a) ....... 178.337–8(a)(2) ... 178.337–8(a)(3) ... 178.337–8(a)(4)(i) 178.337–8(a)(4)(ii) 178.337–9 ........... 178.337–9(c) ....... 178.338–10(a) ..... 178.338–10(c) ..... 178.338–11(b) ..... 178.338–12 ......... 178.338–13 ......... 178.338–18(a) ..... 178.338–18(b) ..... 178.338–6 ........... 178.338–8 ........... 178.340– 10(b) 2. 178.340–62 .......... 178.340–7(a)2 ..... 178.340–7(c)2 ...... 178.340–7(d)(2)2 Improper transportation of explosives (Class 1) ...................................... Loading/Unloading Class 1 with engine running ..................................... Transporting Class 1 in combination vehicles ......................................... Transfer of Class 1 materials en route .................................................... Improper transporting of Class 3 HM ....................................................... Cargo tanks not properly bonded/grounded ............................................ Improper unloading of combustible liquids .............................................. Improper transport of class 4, 5 or division 4.2 ....................................... Improper transportation of Class 8 HM .................................................... Improper transportation of Class 2 HM .................................................... Discharge valve not closed in transit class 2 .......................................... Fail to test off-truck remote shutoff device .............................................. Fail to possess remote shutoff when unloading ...................................... Improper transportation of Division 6.1 or Division 2.3 HM ..................... Poison label loaded with foodstuffs ......................................................... Total transport index exceeds 50- non-exclusive use ............................. Distance from package to person-radioactive material ........................... Blocking and bracing of radioactive material packages .......................... Prohibited load/transport/storage combination ......................................... Class 1 load separation or segregation ................................................... Transporting unauthorized HM in a passenger-carrying vehicle ............. Prohibited HM on passenger carrying vehicle ......................................... DOT51 integrity and securement ............................................................. DOT51 valve protection ........................................................................... DOT51 name plate Markings—HM .......................................................... Tank outlets not marked .......................................................................... DOT 56/57 integrity and securement ....................................................... DOT 56/57 spec Markings—HM .............................................................. DOT 60 ID plate ....................................................................................... DOT 60 manhole ...................................................................................... DOT 60 valve protection .......................................................................... IM101/102 general design ........................................................................ IM101/102 pressure relief ........................................................................ IM101/102 spec plate ............................................................................... Structural integrity .................................................................................... IM101/102 frames .................................................................................... IM101/102 valve protection ...................................................................... IM101/102 manholes ................................................................................ Protecting of fittings MC330 ..................................................................... Anchoring of tank MC330 ........................................................................ Metal ID plate marking MC330 ................................................................ Certification plate MC330 ......................................................................... Safety relief devices MC330 .................................................................... Marking of inlets/outlets MC330 ............................................................... Protection of fittings MC331 ..................................................................... Internal valve MC331 (178.337–11(a)(2)) ................................................ MC331 supports and anchoring ............................................................... Metal ID plate missing MC331 ................................................................. Outlets general requirements MC331 ...................................................... Outlets MC331 ......................................................................................... Internal or back flow valve MC331 .......................................................... Remote closure device greater than 3500 gallons MC331 ..................... Remote closure device less than 3500 gallons MC331 .......................... Pressure relief devices MC331 ................................................................ Marking inlets/outlets MC331 ................................................................... Protection of fittings MC338 ..................................................................... Rear end protection MC338 ..................................................................... Manual shutoff valve MC338 ................................................................... Shear section MC338 ............................................................................... Supports and anchoring MC338 .............................................................. Name plate/Specification plate missing MC338 ...................................... Specification plate missing MC338 .......................................................... Manhole MC338 ....................................................................................... Pressure relief devices MC338 ................................................................ MC306/307/312 metal certification plate missing .................................... Fire Hazard—HM ............................ Fire Hazard—HM ............................ Fire Hazard—HM ............................ Fire Hazard—HM ............................ Fire Hazard—HM ............................ Cargo Protection—HM .................... Cargo Protection—HM .................... Fire Hazard—HM ............................ Cargo Protection—HM .................... Fire Hazard—HM ............................ Cargo Protection—HM .................... Cargo Protection—HM .................... Cargo Protection—HM .................... Fire Hazard—HM ............................ HM Other ........................................ HM Other ........................................ HM Other ........................................ HM Other ........................................ Fire Hazard—HM ............................ HM Other ........................................ Load Securement—HM .................. Load Securement—HM .................. Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... MC306/307/312 MC306/307/312 MC306/307/312 MC306/307/312 Package Package Package Package VerDate Sep<11>2014 18:32 Jan 20, 2016 supports and anchoring ................................................. ring stiffeners ................................................................. double bulkhead drain ................................................... ring stiffener drain hole .................................................. Jkt 238001 PO 00000 Frm 00069 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM Integrity—HM Integrity—HM Integrity—HM Integrity—HM 21JAP2 ................... ................... ................... ................... Violation severity weight 6 6 6 6 6 4 4 6 4 6 4 4 4 6 2 2 2 2 6 2 10 10 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 3630 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 5—HAZARDOUS MATERIALS COMPLIANCE BASIC VIOLATIONS—Continued mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Violation description shown on driver/vehicle examination report given to CMV driver after inspection 178.340–8(a)2 ..... 178.340–8(b)2 ..... 178.340–8(c)2 ...... 178.340–8(d)2 ..... 178.340–8(d)(1)2 178.340–8(d)(2)2 178.341–3(a)2 ..... 178.341–42 .......... 178.341–4(d)(1)2 178.341–4(d)(2)2 178.341–4(d)(3)2 178.341–5(a)2 ..... 178.341–5(a)(1)2 178.341–5(a)(2)2 178.342–32 .......... 178.342–42 .......... 178.342–4(b)2 ..... 178.342–5(a)2 ..... 178.342–5(a)(1)2 178.342–5(a)(2)2 178.343–32 .......... 178.343–42 .......... 178.343–5(a)2 ..... 178.343–5(b)(1)2 178.345–1 ........... 178.345–11(b) ..... 178.345–11(b)(1) 178.345– 11(b)(1)(i). 178.345–14(b) ..... 178.345–14(c) ..... 178.345–1(i)(2) .... 178.345–5(d) ....... 178.345–5(e) ....... 178.345–6 ........... 178.345–7(d)(4) ... 178.345–8(a) ....... 178.345–8(a)(5) ... 178.345–8(b) ....... 178.345–8(c) ....... 178.345–8(d) ....... 178.703(a) ........... 178.703(b) ........... 178.704(e) ........... 179.300–12 ......... 179.300–13 ......... 179.300–15 ......... 179.300–18 ......... 180.205(c) ........... 180.213(d) ........... 180.352(b) ........... 180.352(d) ........... 180.352(f) ............ 180.405(b) ........... 180.405(j) ............ 180.407(a)(1) ....... 180.407(c) ........... 180.415(b) ........... 180.605 ............... 180.605(k) ........... 385.403 ............... 397.1(a) ............... 397.1(b) ............... 397.2 ................... 397.5(a) ............... 397.5(c) ............... 397.7(a) ............... 397.7(b) ............... 397.11(a) ............. 397.11(b) ............. MC306/307/312 appurtenances attachment ............................................ MC306/307/312 rearend protection ......................................................... MC306/307/312 overturn protection ......................................................... MC306/307/312 piping protection ............................................................ MC306/307/312 piping protection ............................................................ MC306/307/312 minimum road clearance ............................................... MC306 no manhole closure ..................................................................... MC306 venting ......................................................................................... MC306 inadequate emergency venting ................................................... MC306 pressure activated vents ............................................................. MC306 no fusible venting ........................................................................ MC306 internal valves .............................................................................. MC306 heat actuated safety .................................................................... MC306 remote control shutoff .................................................................. MC307 manhole closure .......................................................................... MC307 venting ......................................................................................... Inadequate venting capacity .................................................................... MC307 internal valve ............................................................................... MC307 heat actuated safety .................................................................... MC307 remote control shutoff .................................................................. Manhole closure MC312 .......................................................................... Venting MC312 (show calculations) ......................................................... MC312 top outlet and valve ..................................................................... MC312 bottom valve/piping protection ..................................................... DOT406/407/412 pressure relief .............................................................. DOT406/407/412 tank valves ................................................................... DOT406/407/412 remote control .............................................................. DOT406/407/412 remote control .............................................................. Package Package Package Package Package Package Package Package Package Package Package Package Package Package Package Package Package Package Package Package Package Package Package Package Package Package Package Package ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... ................... 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 DOT406/407/412 name plate ................................................................... DOT406/407/412 specification plate ........................................................ DOT 406, 407, 412 Obstructed double bulkhead drain/vent ................... DOT406/407/412 manhole securement ................................................... DOT406/407/412 manhole marking ......................................................... DOT406/407/412 supports and anchoring ............................................... DOT406/407/412 ring stiffener drain ........................................................ DOT406/407/412 accident protection ...................................................... DOT406/407/412 minimum road clearance ............................................. DOT406/407/412 bottom damage protection ........................................... DOT406/407/412 rollover damage protection .......................................... DOT406/407/412 rear end protection ...................................................... Intermediate bulk container (IBC) manufacturer Markings—HM ............. Intermediate bulk container additional Markings—HM ............................ Intermediate bulk container bottom discharge valve protection .............. DOT106/110aw protection of fittings ........................................................ DOT106/110aw venting and valves ......................................................... DOT106/110aw safety relief devices ....................................................... DOT106/110aw stamping of tanks ........................................................... Periodic re-qualification of cylinders ........................................................ Re-qualification Markings—HM ................................................................ Intermediate bulk container retest or inspection ...................................... IBC retest date marking ........................................................................... IBC retest date marking (180.352(e)) ...................................................... Cargo tank specifications ......................................................................... Certification withdrawal (failed to remove/cover/obliterate spec plate) ... Cargo tank periodic test and inspection .................................................. Failing to periodically test and inspect cargo tank ................................... Cargo tank test or inspection Markings—HM .......................................... Periodic testing of portable tanks ............................................................. Test date marking .................................................................................... No HM Safety Permit ............................................................................... Driver/carrier must obey part 397 ............................................................ Failing to require employees to know/obey part 397 ............................... Must comply with rules in parts 390–397-transporting HM ..................... Unattended explosives 1.1/1.2/1.3 ........................................................... Unattended hazmat vehicle ...................................................................... Improperly parked explosives vehicle ...................................................... Improperly parked HM vehicle ................................................................. HM vehicle operated near open fire ........................................................ HM vehicle parked within 300 feet of fire ................................................ Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Integrity—HM ................... Package Testing—HM .................... Package Testing—HM .................... Package Testing—HM .................... Package Testing—HM .................... Package Testing—HM .................... Package Testing—HM .................... Package Testing—HM .................... Package Testing—HM .................... Package Testing—HM .................... Package Testing—HM .................... Package Testing—HM .................... Package Testing—HM .................... Documentation—HM ....................... HM Other ........................................ HM Other ........................................ HM Other ........................................ Fire Hazard—HM ............................ Cargo Protection—HM .................... Fire Hazard—HM ............................ Fire Hazard—HM ............................ Fire Hazard—HM ............................ Fire Hazard—HM ............................ 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 7 7 7 7 7 7 7 7 7 7 7 7 3 2 2 2 6 4 6 6 6 6 VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 PO 00000 Frm 00070 Fmt 4701 Sfmt 4702 Violation group description Violation severity weight 49 CFR section E:\FR\FM\21JAP2.SGM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM Integrity—HM 21JAP2 3631 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE 5—HAZARDOUS MATERIALS COMPLIANCE BASIC VIOLATIONS—Continued Violation severity weight 49 CFR section Violation description shown on driver/vehicle examination report given to CMV driver after inspection Violation group description 397.15 ................. 397.17 ................. 397.19 ................. HM vehicle fueling violation ..................................................................... No tire examination on HM vehicle .......................................................... No instructions/documents when transporting Division 1.1/1.2/1.3 (explosive) materials. Required documents not in possession-explosive materials ................... HM vehicle routing violation (non-radioactive materials) ......................... Radioactive materials vehicle not on preferred route .............................. No or incomplete route plan-radioactive materials .................................. Driver not in possession of training certificate ......................................... Driver not in possession of written route plan ......................................... Fire Hazard—HM ............................ HM Other ........................................ Documentation—HM ....................... 6 2 3 Documentation—HM ....................... HM Route ........................................ HM Route ........................................ HM Route ........................................ HM Route ........................................ HM Route ........................................ 3 1 1 1 1 1 397.19(c) ............. 397.67 ................. 397.101(b) ........... 397.101(d) ........... 397.101(e)(2) ....... 397.101(e)(3) ....... 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). PART 386—RULES OF PRACTICE FOR MOTOR CARRIER, INTERMODAL EQUIPMENT PROVIDER, BROKER, FREIGHT FORWARDER, AND HAZARDOUS MATERIALS PROCEEDINGS 50. The authority citation for part 386 continues to read as follows: ■ 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. 51. Amend appendix B to part 386 by revising paragraph (f) and adding paragraph (j) to read as follows: ■ 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 171.15 ..................................... 49 CFR 171.16 ..................................... 49 CFR 172.313(a) .............................. 49 49 49 49 49 49 49 CFR CFR CFR CFR CFR CFR CFR 172.704(a)(4) .......................... 172.704(a)(5) .......................... 172.800(b) .............................. 172.800(b) .............................. 172.800(b) .............................. 172.802(b) .............................. 173.24(b)(1) ............................ 49 CFR 173.24b(d)(2) .......................... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 49 CFR 173.33(a)(1) ............................ 49 CFR 173.33(a)(2) ............................ 49 CFR 173.33(b)(1) ............................ 49 CFR 173.421(a) .............................. 49 CFR 173.431(a) .............................. 49 CFR 173.431(b) .............................. 49 CFR 173.441(a) .............................. VerDate Sep<11>2014 18:32 Jan 20, 2016 Carrier failing to give immediate telephone notice of an incident involving HM. Carrier failing to make a written report of an incident involving HM. Accepting for transportation or transporting a package containing a poisonous-by-inhalation material that is not marked with the words ‘‘Inhalation Hazard.‘‘ Failing to provide security awareness training. Failing to provide in-depth security awareness training. Transporting HM without a security plan. Transporting HM without a security plan that conforms to Subpart I requirements. Failure to adhere to a required security plan. Failure to make copies of security plan available to HM employees. Accepting for transportation or transporting a package that has an identifiable release of a HM to the environment. Loading bulk packaging (cargo tank) with an HM which exceeds the maximum weight of lading marked on the specification plate. Offering or accepting a HM for transportation in an unauthorized cargo tank. Loading or accepting for transportation two or more materials in a cargo tank motor vehicle which if mixed results in an unsafe condition. Loading HM in a cargo tank motor would have a dangerous reaction when in contact with the tank. 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). Accepting for transportation or transporting in a Type A packaging a greater quantity of Class 7 (radioactive) material than authorized. Accepting for transportation or transporting in a Type B packaging a greater quantity of Class 7 (radioactive) material than authorized. Accepting for transportation or transporting a package containing Class 7 (radioactive) material with external radiation exceeding allowable limits. Jkt 238001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 3632 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE TO PARAGRAPH (j) OF APPENDIX B TO PART 386—MINIMUM AND MAXIMUM PENALTY REGULATIONS—Continued 49 CFR 173.442(b) .............................. 49 CFR 173.443(a) .............................. 49 49 49 49 49 49 49 CFR CFR CFR CFR CFR CFR CFR 177.800(c) ............................... 177.817(a) .............................. 177.817(e) .............................. 177.823(a) .............................. 177.834(i) ................................ 177.835(a) .............................. 177.835(j) ................................ 49 CFR 177.835(c) ............................... 49 CFR 177.841(e) .............................. 49 CFR 177.848(d) .............................. 49 CFR 180.407(a) .............................. 49 CFR 180.415 ................................... 49 CFR 180.417(a)(1) .......................... 49 CFR 180.417(a)(2)) ......................... 49 49 49 49 CFR CFR CFR CFR 382.115(a) .............................. 382.115(b) .............................. 382.201 ................................... 382.211 ................................... 49 CFR 382.213(b) .............................. 49 CFR 382.215 ................................... 49 CFR 382.301(a) .............................. 49 49 49 49 CFR CFR CFR CFR 382.303(a) .............................. 382.303(b) .............................. 382.305 ................................... 382.305(b)(1) .......................... 49 CFR 382.305(b)(2) .......................... 49 CFR 382.309 ................................... 49 CFR 382.503 ................................... 49 CFR 382.505(a) .............................. 49 CFR 382.605 ................................... 49 CFR 383.23(a) ................................ 49 CFR 383.3(a) .................................. 49 CFR 383.37(a) ................................ 49 CFR 383.37(b) ................................ 49 CFR 383.51(a) ................................ 49 CFR 387.31(d) ................................ mstockstill on DSK4VPTVN1PROD with PROPOSALS2 49 CFR 387.7(d) .................................. 49 CFR 390.15(b)(2) ............................ 49 CFR 390.35 ..................................... 49 49 49 49 49 49 49 49 CFR CFR CFR CFR CFR CFR CFR CFR 391.11(b)(4) ............................ 391.11(b)(5) ............................ 391.15(a) ................................ 391.23(a) ................................ 391.45(a) ................................ 391.45(b)(1) ............................ 391.51(a) ................................ 391.51(b)(2) ............................ VerDate Sep<11>2014 18:32 Jan 20, 2016 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. 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. Failing to instruct a category of employees in HM regulations. Transporting a shipment of HM not accompanied by a properly prepared shipping paper. Failing to maintain proper accessibility of shipping papers. Moving a transport vehicle containing HM that is not properly marked or placarded. Loading or unloading a cargo tank without a qualified person in attendance. Loading or unloading a Class 1 (explosive) material with the engine running. Transferring Division 1.1, 1.2, or 1.3 (explosive) materials between containers or motor vehicles when not permitted. 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. 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. Failing to store, Load, or transport HM in accordance with the segregation table. Transporting a shipment of HM in cargo tank that has not been inspected or retested in accordance with § 180.407. Failing to mark a cargo tank which passed an inspection or test required by § 180.407. Failing to retain cargo tank manufacturer’s data report certificate and related papers, as required. Failing to retain copies of cargo tank manufacturer’s certificate and related papers (or alternative report) as required. Failing to implement an alcohol and/or controlled substances testing program (domestic motor carrier). Failing to implement an alcohol and/or controlled substances testing program (foreign motor carrier). Using a driver known to have an alcohol concentration of 0.04 or greater. Using a driver who has refused to submit to an alcohol or controlled substances test required under part 382. Using a driver known to have used a controlled substance. Using a driver known to have tested positive for a controlled substance. Using a driver before the motor carrier has received a negative pre-employment controlled substance test result. Failing to conduct post-accident testing on driver for alcohol. Failing to conduct post-accident testing on driver for controlled substances. Failing to implement a random controlled substances and/or an alcohol testing program. 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. 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. Using a driver without a return to duty test. Allowing 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. 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. Failing 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. Operating a CMV without a valid CDL. Using a driver who does not possess a valid CDL (removed knowingly). 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. 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. Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a CMV. Failing to maintain at the principal place of business required proof of financial responsibility for passenger carrying vehicles. Failing to maintain at the principal place of business required proof of financial responsibility. Failing to maintain copies of all accident reports required by State or other governmental entities or insurers. Making, or causing to make fraudulent or intentionally false statements or records and/or reproducing fraudulent records. Using a physically unqualified driver. Using a driver without a currently valid motor vehicle operator’s license or permit. Using a disqualified driver. Failing to investigate a driver’s background. Using a driver not medically examined and certified. Using a driver not medically examined and certified during the preceding 24 months. Failing to maintain driver qualification file on each driver employed. Failing to maintain inquiries into driver’s driving record in driver’s qualification file. Jkt 238001 PO 00000 Frm 00072 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules 3633 TABLE TO PARAGRAPH (j) OF APPENDIX B TO PART 386—MINIMUM AND MAXIMUM PENALTY REGULATIONS—Continued 49 CFR 391.51(b)(7) ............................ 49 CFR 392.2 ....................................... 49 CFR 392.4(b) .................................. 49 CFR 392.5(b)(1) .............................. 49 CFR 392.5(b)(2) .............................. 49 CFR 392.6 ....................................... 49 CFR 392.9(a)(1) .............................. 49 CFR 395.1(h)(1)(i) ........................... 49 CFR 395.1(h)(1)(ii) .......................... 49 CFR 395.1(h)(1)(iii) ......................... 49 CFR 395.1(h)(1)(iv) ......................... 49 CFR 395.1(h)(2)(i) ........................... 49 CFR 395.1(h)(2)(ii) .......................... 49 CFR 395.1(h)(2)(iii) ......................... 49 CFR 395.1(h)(2)(iv) ......................... 49 CFR 395.1(o) .................................. 49 CFR 395.3(a)(1) .............................. 49 CFR 395.3(a)(2) .............................. 49 CFR 395.3(b)(1) .............................. 49 CFR 395.3(b)(2) .............................. 49 CFR 395.3(c)(1) .............................. 49 CFR 395.3(c)(2) .............................. 49 CFR 395.5(a)(1) .............................. 49 CFR 395.5(a)(2) .............................. 49 CFR 395.5(b)(1) .............................. 49 CFR 395.5(b)(2) .............................. 49 49 49 49 CFR CFR CFR CFR 395.8(a) .................................. 395.8(a) .................................. 395.8(e) .................................. 395.8(i) .................................... 49 CFR 395.8(k)(1) .............................. 49 CFR 395.13(c)(1) ............................ 49 CFR 396.3(b) .................................. 49 CFR 396.9(c)(2) .............................. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 49 CFR 396.11(a) ................................ 49 CFR 396.11(c) ................................. 49 CFR 396.17(g) ................................ 49 CFR 397.5(a) .................................. 49 CFR 397.7(a)(1) .............................. 49 CFR 397.7(b) .................................. 49 CFR 397.13(a) ................................ VerDate Sep<11>2014 18:32 Jan 20, 2016 Failing to maintain medical examiner’s certificate in driver’s qualification file. Operating a motor vehicle not in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. 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. Requiring or permitting a driver to drive a motor vehicle while under the influence of, or in possession of, an intoxicating beverage. Requiring or permitting a driver who shows evidence of having consumed an intoxicating beverage within 4 hours to operate a motor vehicle. Scheduling a run which would necessitate the vehicle being operated at speeds in excess of those prescribed. Requiring or permitting a driver to drive without the vehicle’s cargo being properly distributed and adequately secured. Requiring or permitting a property-carrying CMV driver to drive more than 15 hours (Driving in Alaska). Requiring or permitting a property-carrying CMV driver to drive after having been on duty 20 hours (Driving in Alaska). 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). 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). Requiring or permitting a passenger-carrying CMV driver to drive more than 15 hours (Driving in Alaska). Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty 20 hours (Driving in Alaska). 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). 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). Requiring or permitting a property-carrying CMV driver to drive after having been on duty 16 consecutive hours. 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. Requiring or permitting a property-carrying CMV driver to drive after the end of the 14th hour after coming on duty. Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 60 hours in 7 consecutive days. Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 70 hours in 8 consecutive days. 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. 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. Requiring or permitting a passenger-carrying CMV driver to drive more than 10 hours. Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty 15 hours. Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 60 hours in 7 consecutive days. Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 70 hours in 8 consecutive days. No records of duty status. Failing to require driver to make a record of duty status. False reports of records of duty status. Failing to require driver to forward within 13 days of completion, the original of the record of duty status. Failing to preserve driver’s record of duty status and/or supporting documents for 6 months. 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). Failing to keep minimum records of inspection and vehicle maintenance. Requiring or permitting the operation of a motor vehicle declared ‘‘out-of-service’’ before repairs were made. Failing to require driver to prepare driver vehicle inspection report(s). Failing to correct Out-of-Service defects listed by driver in a driver vehicle inspection report before the vehicle is operated again. Failing to promptly repair parts and accessories not meeting minimum periodic inspection standards. 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. Parking a motor vehicle containing Division 1.1, 1.2, or 1.3 materials within 5 feet of traveled portion of highway or street. 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. 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. Jkt 238001 PO 00000 Frm 00073 Fmt 4701 Sfmt 4702 E:\FR\FM\21JAP2.SGM 21JAP2 3634 Federal Register / Vol. 81, No. 13 / Thursday, January 21, 2016 / Proposed Rules TABLE TO PARAGRAPH (j) OF APPENDIX B TO PART 386—MINIMUM AND MAXIMUM PENALTY REGULATIONS—Continued 49 CFR 397.19(a) ................................ 49 CFR 397.67(d) ................................ 49 CFR 397.101(d) .............................. 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. 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. 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. § 387.309 Qualifications as a self-insurer and other securities or agreements. PART 387—MINIMUM LEVELS OF FINANCIAL RESPONSIBILITY FOR MOTOR CARRIERS 52. The authority citation for part 387 continues to read as follows: ■ Authority: 49 U.S.C. 13101, 13301, 13906, 13908, 14701, 31138, 31139, and 31144; and 49 CFR 1.87. 53. Amend § 387.7 by revising paragraph (d)(3) to read as follows. ■ § 387.7 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. * * * * * ■ 54. Amend § 387.309 by revising paragraph (a)(3) to read as follows. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 * VerDate Sep<11>2014 18:32 Jan 20, 2016 Jkt 238001 (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. * * * * * PART 395—HOURS OF SERVICE OF DRIVERS 55. The authority citation for part 395 continues to read as follows: ■ 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 PO 00000 Frm 00074 Fmt 4701 Sfmt 9990 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. 56. Amend § 395.15 by revising paragraph (j)(2)(i) to read as follows: ■ § 395.15 Automatic on-board recording devices. * * * * * (j) * * * (2) * * * (i) The motor carrier has been issued an unfit safety fitness determination by the FMCSA; * * * * * Issued under the authority delegated in 49 CFR 1.87 on: December 29, 2015. T.F. Scott Darling, III, Acting Administrator. [FR Doc. 2015–33153 Filed 1–20–16; 8:45 am] BILLING CODE 4910–EX–P E:\FR\FM\21JAP2.SGM 21JAP2

Agencies

[Federal Register Volume 81, Number 13 (Thursday, January 21, 2016)]
[Proposed Rules]
[Pages 3561-3634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-33153]

[[Page 3561]]

Vol. 81

Thursday,

No. 13

January 21, 2016

Part II

Department of Transportation

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Federal Motor Carrier Safety Administration

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49 CFR Parts 350, 365, 385, et al.

Carrier Safety Fitness Determination; Proposed Rule

Federal Register / Vol. 81 , No. 13 / Thursday, January 21, 2016 /
Proposed Rules

[[Page 3562]]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 350, 365, 385, 386, 387, and 395

[Docket No. FMCSA-2015-0001]
RIN 2126-AB11

Carrier Safety Fitness Determination

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

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

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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: https://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.

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.

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

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------------------------------------------------------------------------
ATRI................................. American Transportation Research
Institute.
BASIC................................ Behavior Analysis and Safety
Improvement Categories.
CDL.................................. Commercial Driver's License.
CMV.................................. Commercial Motor Vehicle.
CVOR................................. Commercial Vehicle Operators
Registration.
CR................................... Compliance Review.
CSA.................................. Compliance, Safety,
Accountability.
DOT.................................. United States Department of
Transportation.
FHWA................................. Federal Highway Administration.
FMCSA................................ Federal Motor Carrier Safety
Administration.
FMCSRs............................... Federal Motor Carrier Safety
Regulations, 49 CFR parts 350
through 399.
FR................................... Federal Register.
HM................................... Hazardous Materials.
HMR.................................. Hazardous Materials Regulations,
49 CFR parts 171 through 180.
MCMIS................................ Motor Carrier Management
Information System.
MCSAC................................ Motor Carrier Safety Advisory
Committee.
MCSAP................................ Motor Carrier Safety Assistance
Program.
NPRM................................. Notice of Proposed Rulemaking.
NTSB................................. National Transportation Safety
Board.
OMB.................................. Office of Management and Budget.
PHMSA................................ Pipeline and Hazardous Materials
Safety Administration.
PU................................... Power Unit.
SFD.................................. Safety Fitness Determination.
SMS.................................. Safety Measurement System.
VMT.................................. Vehicle Miles Traveled.
VOLPE................................ U.S. DOT Office of the Assistant
Secretary for Research and
Technology's John A. Volpe
National Transportation Systems
Center, Cambridge, MA.
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[[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.
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\1\ See ``Safety Measurement System Changes, June 2012'' page 5
in docket FMCSA-2012-0074 at https://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 https://csa.fmcsa.dot.gov/Documents/SMSMethodology.pdf.
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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.
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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.
---------------------------------------------------------------------------

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

[[Page 3564]]

substances 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 Sec. 385.15, would propose a compliance
agreement procedure similar to the existing Sec. 385.17 upgrade
process for carriers with a proposed unfit SFD, and would add an
opportunity to submit missing inspection data under Sec. 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 Sec. 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.
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\3\ ``Estimating the Safety Impact of Proposed Safety Fitness
Determination (SFD) Criteria,'' FMCSA, May 2015.
---------------------------------------------------------------------------

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

[[Page 3565]]

cost of this proposed rule is $11.3 million.
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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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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\
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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 https://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.
\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.
---------------------------------------------------------------------------

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
Costs............................ 9.9 10.6 11.3
--------------------------------------
Net Benefits................. 231.1 230.4 229.6
------------------------------------------------------------------------
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
Costs............................ 92.2 81.0 69.2
--------------------------------------
Net Benefits................. 21,98.7 1,916.5 1,622.8
------------------------------------------------------------------------
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

[[Page 3566]]

for 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\
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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 https://www.gpo.gov/fdsys/pkg/STATUTE-98/pdf/STATUTE-98-Pg2829.pdf (PDF page 16 of 25).
\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 https://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.
\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 https://www.gpo.gov/fdsys/pkg/STATUTE-112/pdf/STATUTE-112-Pg107.pdf (PDF page 299 of 403).
\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 https://www.gpo.gov/fdsys/pkg/STATUTE-119/pdf/STATUTE-119-Pg1144.pdf (PDF
page 582 of 835).
\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 https://www.gpo.gov/fdsys/pkg/PLAW-112publ141/pdf/PLAW-112publ141.pdf (PDF page 409 of 584).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\12\ 49 U.S.C. 31144(a). See https://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleVI-partB-chap311-subchapIII-sec31144.pdf.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\13\ 49 U.S.C. 31144(b).
---------------------------------------------------------------------------

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\
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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 https://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleVI-partB-chap311-subchapIII.pdf.
\15\ 49 U.S.C. 504(c). See https://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleI-chap5-subchapI-sec504.pdf.
\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 https://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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\17\ 49 U.S.C. 13905(f)(1)(B). See https://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleIV-partB-chap139-sec13905.pdf.
\18\ 49 U.S.C. 31134(c). See https://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleVI-partB-chap311-subchapIII-sec31134.pdf.
\19\ 49 U.S.C. 31102(a) and (b). See https://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleVI-partB-chap311-subchapI-sec31102.pdf.
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The Secretary has delegated the authority to carry out all of these
functions to the FMCSA Administrator.\20\
---------------------------------------------------------------------------

\20\ 49 CFR 1.87(f).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\21\ 53 FR 50961 (Dec. 19, 1988), codified at 49 CFR part 385.
\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.
\23\ 56 FR 40802 (Aug. 16, 1991), Regulatory Identification
Number (RIN) 2125-AC71.
\24\ Motor Carrier Safety Act of 1990, Pub. L. 101-500, sec.
15(b)(1), 104 Stat. 1218 (Nov. 3, 1990). See https://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 https://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleVI-partB-chap311-subchapIII-sec31144.pdf.
\25\ 56 FR at 40803.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\26\ 108 F.3d 401 (D.C. Cir. 1997).
\27\ 49 U.S.C. 31144.
---------------------------------------------------------------------------

In response, FHWA issued a second interim final rule in May 1997
incorporating the safety fitness rating

[[Page 3567]]

methodology 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.
---------------------------------------------------------------------------

\28\ 62 FR 28807 (May 28, 1997) adding appendix B to 49 CFR part
385. RIN 2125-AC71.
\29\ 62 FR 28826 (May 28, 1997), discussion of 1991 interim
final rule comments at page 28827, RIN 2125-AC71.
---------------------------------------------------------------------------

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\
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\30\ 62 FR 60035 (Nov. 6, 1997). RIN 2125-AC71.
\31\ 63 FR 62957 (Nov. 10, 1998). RIN 2125-AC71.
\32\ 166 F.3d 374 (D.C. Cir. 1999).
\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.
---------------------------------------------------------------------------

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\
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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.
\35\ 65 FR 50919 (Aug. 22, 2000).
---------------------------------------------------------------------------

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\
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\36\ 65 FR 11904 (Mar. 7, 2000).
\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).
\38\ 72 FR 36760 (July 5, 2007).
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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.
---------------------------------------------------------------------------

\39\ Report No. NTSB/HAR-07/01, PB2007-916202, Notation 7774C,
Adopted Feb. 21, 2007. You may download the report by visiting
https://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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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.
---------------------------------------------------------------------------

\40\ John A. Volpe National Transportation Systems Center,
``Carrier Safety Measurement System (CSMS) Methodology-Version
3.0.2'' FMCSA, June 2014.
---------------------------------------------------------------------------

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.)
---------------------------------------------------------------------------

\41\ John A. Volpe National Transportation Systems Center,
``Carrier Safety Measurement System (CSMS) Violation Severity
Weights,'' December 2010.
---------------------------------------------------------------------------

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

[[Page 3568]]

SMS 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.
---------------------------------------------------------------------------

\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.
\43\ Green and Blower, ``Evaluation of the CSA 2010 Operational
Model Test,'' FMCSA, August 2011, Report No. MC-RRA-11-019, https://csa.fmcsa.dot.gov/Documents/Evaluation-of-the-CSA-Op-Model-Test.pdf.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\44\ For more detailed information, please go to the CSA Web
site at https://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.
---------------------------------------------------------------------------

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

[[Page 3569]]

their 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
----------------------------------------------------------------------------------------------------------------
Basic SMS Intervention thresholds
----------------------------------------------------------------------------------------------------------------
Passenger HM All others
----------------------------------------------------------------------------------------------------------------
Unsafe Driving, HOS, Crash Indicator.......... Greater than or equal to (>=) >=60% >=65%
50%.
Driver Fitness, Controlled Substances/Alcohol, >=65%........................... >=75% >=80%
Vehicle Maintenance.
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
---------------------------------------------------------------------------

\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.

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 ratings
----------------------------------------------------- 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
------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.

Table 5--Distribution of Ratable Investigations Types in FY 2012 \46\
------------------------------------------------------------------------
Investigation type Number
------------------------------------------------------------------------
Ratable Full CRs/Comprehensive On-Site Investigations... 6,641
Ratable Focused CRs/Focused On-Site Investigations...... 10,361
---------------
Total............................................... 17,002
------------------------------------------------------------------------

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.

[[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\
---------------------------------------------------------------------------

\47\ These recommendations are available through the NTSB Safety
Recommendations-Search and View Web pages. Retrieved April 6, 2015,
from: https://www.ntsb.gov.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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 (https://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.
---------------------------------------------------------------------------

\50\ Accessed on April 6, 2015.
---------------------------------------------------------------------------

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
----------------------------------------------------------------------------------------------------------------
Minimum number
Minimum number of inspections
Action of inspections with violations Explanation
required required
----------------------------------------------------------------------------------------------------------------
Assess..................................... 11 0 If a motor carrier has 11
inspections in MCMIS, the
Agency has sufficient
information to assess it.
Data Sufficiency for Potential to Fail a 11 11 This is the data threshold
BASIC. that must be met before a
carrier could fail a BASIC.
----------------------------------------------------------------------------------------------------------------

[[Page 3571]]

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\
---------------------------------------------------------------------------

\51\ 49 U.S.C. 31133(a)(10), 31144(b).
\52\ 49 U.S.C. 31144(c)(1)-(3).
\53\ 49 U.S.C. 31144(c)(5).
\54\ 49 U.S.C. 31144(f).
---------------------------------------------------------------------------

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.

[[Page 3572]]

[GRAPHIC] [TIFF OMITTED] TP21JA16.000

[[Page 3573]]

[GRAPHIC] [TIFF OMITTED] TP21JA16.001

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.
---------------------------------------------------------------------------

\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 https://www.gao.gov/products/GAO-14-114, accessed April 6,
2015.
---------------------------------------------------------------------------

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
----------------------------------------------------------------------------------------------------------------
11+ inspections (SFD) 5+ inspections (intervention)
---------------------------------------------------------------
Power units Percent of Percent of
Number of total shown Number of total shown
carriers (percent) carriers (percent)
----------------------------------------------------------------------------------------------------------------
5 or fewer...................................... 31,957 42.1 86,486 59.5
6 to 15......................................... 21,885 28.9 32,974 22.7
16 to 50........................................ 14,843 19.6 18,122 12.5
51 to 500....................................... 6,558 8.6 7,058 4.9

[[Page 3574]]

501+............................................ 585 0.8 597 0.4
---------------------------------------------------------------
Total....................................... 75,828 100 145,237 100
----------------------------------------------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\56\ John A. Volpe National Transportation Systems Center,
``Carrier Safety Measurement System (CSMS) Violation Severity
Weights,'' December 2010.
\57\ See 72 FR 62293, at 62299, (Nov. 2, 2007), Comprehensive
Safety Analysis 2010 Initiative, Notice of public listening session.
---------------------------------------------------------------------------

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

[[Page 3575]]

dividing 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.
---------------------------------------------------------------------------

\58\ Combination vehicle segments include those motor carriers
that operate either truck tractors or motor coaches.
\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 https://www.regulations.gov/#!documentDetail;D=FMCSA-1997-2349-0195.

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
----------------------------------------------------------------------------------------------------------------
BASIC Failure BASIC Failure BASIC Failure BASIC Failure
Safety Event Group (number of inspections with standard standard standard standard
unsafe driving violations) equivalent to equivalent to equivalent to equivalent to
95% 96% 98% 99%
----------------------------------------------------------------------------------------------------------------
11 to 21........................................ 12.74 14.21 18.54 27.25
22-57........................................... 8.77 9.58 13.5 18.98
58-149.......................................... 5.47 6.26 8.10 9.71
150+............................................ 2.77 2.80 2.90 3.00
----------------------------------------------------------------------------------------------------------------

Table 9--Unsafe Driving Failure Standards: (Weighted Violations Divided by Power Units) Straight Truck \59\
Segment--Alternatives Considered
----------------------------------------------------------------------------------------------------------------
BASIC Failure BASIC Failure BASIC Failure BASIC Failure
Safety event group (number of inspections with standard standard standard standard
unsafe driving violations) equivalent to equivalent to equivalent to equivalent to
95% 96% 98% 99%
----------------------------------------------------------------------------------------------------------------
11 to 18........................................ 8.19 9.64 11.47 15.99
19-49........................................... 4.59 5.12 7.31 12.05
50+............................................. 1.36 1.47 1.89 2.05
----------------------------------------------------------------------------------------------------------------

Table 10--Hours of Service Compliance Failure Standards (Weighted Violations Divided by Driver Inspections)--
Alternatives Considered
----------------------------------------------------------------------------------------------------------------
BASIC Failure BASIC Failure BASIC Failure BASIC Failure
Safety event group (number of driver standard standard standard standard
inspections) equivalent to equivalent to equivalent to equivalent to
95% 96% 98% 99%
----------------------------------------------------------------------------------------------------------------
11 to 20........................................ 3.88 4.15 4.94 5.65
21-100.......................................... 2.94 3.13 3.66 5.21
101-500......................................... 2.09 2.20 2.44 2.69
501+............................................ 1.46 1.54 1.73 1.91
----------------------------------------------------------------------------------------------------------------

Table 11--Driver Fitness Failure Standards (Weighted Violations Divided by Driver Inspections)--Alternatives
Considered
----------------------------------------------------------------------------------------------------------------
BASIC Failure BASIC Failure BASIC Failure BASIC Failure
Safety event group (number of driver standard standard standard standard
inspections) equivalent to equivalent to equivalent to equivalent to
95% 96% 98% 99%
----------------------------------------------------------------------------------------------------------------
11 to 20........................................ 1.54 1.68 2.19 2.74
21-100.......................................... 0.78 0.86 1.11 1.39
101-500......................................... 0.29 0.31 0.39 0.50
501+............................................ 0.14 0.15 0.19 0.24
----------------------------------------------------------------------------------------------------------------

Table 12--Vehicle Maintenance Failure Standards (Weighted Violations Divided by Vehicle Inspections)--
Alternatives Considered
----------------------------------------------------------------------------------------------------------------
BASIC Failure BASIC Failure BASIC Failure BASIC Failure
Safety event group (number of vehicle standard standard standard standard
inspections) equivalent to equivalent to equivalent to equivalent to
95% 96% 98% 99%
----------------------------------------------------------------------------------------------------------------
11 to 20........................................ 14.19 14.93 16.94 18.79

[[Page 3576]]

21-100.......................................... 11.96 12.62 14.38 16.12
101-500......................................... 8.84 9.18 10.36 11.82
501+............................................ 6.54 6.77 7.9 8.91
----------------------------------------------------------------------------------------------------------------

Table 13--HM Compliance Failure Standards (Weighted Violations Divided by Placarded HM Inspections)--
Alternatives Considered
----------------------------------------------------------------------------------------------------------------
BASIC Failure BASIC Failure BASIC Failure BASIC Failure
Safety event group (number of placarded HM standard standard standard standard
inspections) equivalent to equivalent to equivalent to equivalent to
95% 96% 98% 99%
----------------------------------------------------------------------------------------------------------------
11 to 20........................................ 4.18 4.34 5.55 6.87
21-100.......................................... 2.81 2.99 3.65 4.82
101-500......................................... 1.86 1.96 2.34 2.56
501+............................................ 1.33 1.46 1.83 1.95
----------------------------------------------------------------------------------------------------------------

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
----------------------------------------------------------------------------------------------------------------
5 or fewer PU 6 to 15 PU 16 to 50 PU 51 to 500 PU
Alternatives considered (%) (%) (%) (%) 501+ PU (%)
----------------------------------------------------------------------------------------------------------------
General Population of Carriers 82.8 11.2 4.4 1.5 0.1
with Recent Activity * as of
March 2013 (Baseline for
comparison)....................
Option 1: Equivalent to 95th 63.1 22.2 10.8 3.5 0.3
percentile for Unsafe Driving
and HOS and 98th percentile for
Driver Fitness, Vehicle
Maintenance, and HM (Based on
11+ inspections with
violations)....................
Proposed Option: Equivalent to 63.9 22.3 10.2 3.3 0.3
96th percentile for Unsafe
Driving and HOS and 99th
percentile for Driver Fitness,
Vehicle Maintenance, and HM
(based on 11+ inspections with
violations)....................
----------------------------------------------------------------------------------------------------------------
* 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 considered 5 or fewer PU 6 to 15 PU 16 to 50 PU 51 to 500 PU 501+ PU
----------------------------------------------------------------------------------------------------------------
General Population of Carriers 2.2 2.3 2.4 2.2 1.8
with Recent Activity as of
March 2013 (Baseline for
comparison)....................
Option 1: Equivalent to 95th 6.7 5.3 4.8 3.6 2.6
percentile for Unsafe Driving
and HOS and 98th percentile for
Driver Fitness, Vehicle
Maintenance, and HM (Based on
11+ inspections with
violations)....................

[[Page 3577]]

Proposed Option: Equivalent to 6.5 5.2 4.7 3.8 3.5
96th percentile for Unsafe
Driving and HOS and 99th
percentile for Driver Fitness,
Vehicle Maintenance, and HM
(Based on 11+ inspections with
violations)....................
----------------------------------------------------------------------------------------------------------------

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
----------------------------------------------------------------------------------------------------------------
Number of
carriers unfit
based on 2 or Crash rate
more failed (crashes per Active Crashes for Power units
Alternatives considered BASICs 100 power carriers active for active
(inspection units) carriers carriers
violations
only)
----------------------------------------------------------------------------------------------------------------
Option 1: Equivalent to 95th 479 3.75 387 569 15,161
percentile for Unsafe Driving
and HOS/98th percentile for
Driver Fitness, Vehicle
Maintenance, and HM (Based on
11+ inspections with
violations)....................
Proposed Option: Equivalent to 262 8.28 211 300 3,625
96th percentile for Unsafe
Driving and HOS/99th for Driver
Fitness, Vehicle Maintenance,
and HM (Based on 11+
inspections with violations)...
----------------------------------------------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\60\ Tversky, A.; Kahneman, D. (1971). ``Belief in the law of
small numbers''. Psychological Bulletin 76 (2): 105-110. https://psycnet.apa.org/journals/bul/76/2/105/.
---------------------------------------------------------------------------

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.

[[Page 3578]]

[GRAPHIC] [TIFF OMITTED] TP21JA16.002

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\
---------------------------------------------------------------------------

\61\ The average batting average for all of Major League
Baseball in 2014 was 0.251. See https://espn.go.com/mlb/stats/team/_/stat/batting/year/2014/seasontype/2, accessed on April 6, 2015.
---------------------------------------------------------------------------

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

[[Page 3579]]

other 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);
---------------------------------------------------------------------------

\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 https://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.
\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.
---------------------------------------------------------------------------

(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;
---------------------------------------------------------------------------

\64\ Reported by the motor carrier during an investigation,
reported online biennially, or reported on Forms MCSA-1 or MCS-150.
---------------------------------------------------------------------------

(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.
---------------------------------------------------------------------------

\65\ Ontario's CVOR and Carrier Safety Rating Public Guideline,
Ministry of Transportation, St. Catharines, Ontario, November 2011.
---------------------------------------------------------------------------

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.

[[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.
---------------------------------------------------------------------------

\66\ ``Estimating the Safety Impact of Proposed Safety Fitness
Determination (SFD) Criteria,'' FMCSA, May 2015.
---------------------------------------------------------------------------

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
----------------------------------------------------------------------------------------------------------------
Behavior analysis
and safety
Acute or critical 49 CFR section Description of violation improvement category
(BASIC)
----------------------------------------------------------------------------------------------------------------
Critical.......................... 173.24(b)(1) Accepting for HM Compliance.
transportation or
transporting a package
that has an identifiable
release of a HM to the
environment.
Critical.......................... 173.24b(d)(2) Loading bulk packaging HM Compliance.
(cargo tank) with an HM
which exceeds the maximum
weight of lading marked
on the specification
plate.
Critical.......................... 173.33(a)(1) Offering or accepting a HM HM Compliance.
for transportation in an
unauthorized cargo tank.
Critical.......................... 173.33(a)(2) Loading or accepting for HM Compliance.
transportation two or
more materials in a cargo
tank motor vehicle which
if mixed results in an
unsafe condition.
Critical.......................... 173.33(b)(1) Loading HM in a cargo tank HM Compliance.
motor would have a
dangerous reaction when
in contact with the tank.
Critical.......................... 177.800(c) Failing to instruct a Driver Fitness.
category of employees in
HM regulations.
Acute............................. 177.801 Accepting for HM Compliance.
transportation or
transporting a forbidden
material.
Critical.......................... 177.817(a) Transporting a shipment of HM Compliance.
HM not accompanied by a
properly prepared
shipping paper.
Critical.......................... 177.834(i) Loading or unloading a HM Compliance.
cargo tank without a
qualified person in
attendance.
Critical.......................... 177.848(d) Failing to store, load, or HM Compliance.
transport HM in
accordance with the
segregation table.
Critical.......................... 180.407(a) Transporting a shipment of HM Compliance.
HM in cargo tank that has
not been inspected or
retested in accordance
with Sec. 180.407.
Acute............................. 382.115(a) Failing to implement an Controlled
alcohol and/or controlled Substances.
substances testing
program (domestic motor
carrier).
Acute............................. 382.115(b) Failing to implement an Controlled
alcohol and/or controlled Substances.
substances testing
program (foreign motor
carrier).
Acute............................. 382.201 Using a driver known to Controlled
have an alcohol Substances.
concentration of 0.04 or
greater.
Acute............................. 382.211 Using a driver who has Controlled
refused to submit to an Substances.
alcohol or controlled
substances test required
under part 382.
Acute............................. 382.215 Using a driver known to Controlled
have tested positive for Substances.
a controlled substance.
Critical.......................... 382.301(a) Using a driver before the Controlled
motor carrier has Substances.
received a negative pre-
employment controlled
substance test result.
Critical.......................... 382.303(a) Failing to conduct post- Controlled
accident testing on Substances.
driver for alcohol.
Critical.......................... 382.303(b) Failing to conduct post- Controlled
accident testing on Substances.
driver for controlled
substances.
Acute............................. 382.305 Failing to implement a Controlled
random controlled Substances.
substances and/or an
alcohol testing program.
Critical.......................... 382.305(b)(1) Failing to conduct random Controlled
alcohol testing at an Substances.
annual rate of not less
than the applicable
annual rate of the
average number of driver
positions.
Critical.......................... 382.305(b)(2) Failing to conduct random Controlled
controlled substances Substances.
testing at an annual rate
of not less than the
applicable annual rate of
the average number of
driver positions.

[[Page 3581]]

Critical.......................... 382.309 Using a driver without a Controlled
return to duty test. Substances.
Critical.......................... 382.503 Allowing a driver to Controlled
perform safety sensitive Substances.
function, after engaging
in conduct prohibited by
subpart B, without being
evaluated by substance
abuse professional, as
required by Sec.
382.605.
Critical.......................... 383.3(a)/383.23(a) Using a driver who does Driver Fitness.
not possess a valid CDL.
Acute............................. 383.37(a) Knowingly allowing, Driver Fitness.
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.
Acute............................. 383.51(a) Knowingly allowing, Driver Fitness.
requiring, permitting, or
authorizing a driver to
drive who is disqualified
to drive a CMV.
Acute............................. 391.11(b)(4) Using a physically Driver Fitness.
unqualified driver.
Acute............................. 391.15(a) Using a disqualified Driver Fitness.
driver.
Critical.......................... 391.45(a) Using a driver not Driver Fitness.
medically examined and
certified.
Critical.......................... 391.45(b)(1) Using a driver not Driver Fitness.
medically examined and
certified during the
preceding 24 months.
Critical.......................... 391.51(a) Failing to maintain driver Driver Fitness.
qualification file on
each driver employed.
Critical.......................... 392.2 Operating a motor vehicle Unsafe Driving.
not in accordance with
the safety laws,
ordinances, and
regulations of the
jurisdiction in which it
is being operated.
Critical.......................... 392.6 Scheduling a run which Unsafe Driving.
would necessitate the
vehicle being operated at
speeds in excess of those
prescribed.
Critical.......................... 392.9(a)(1) Requiring or permitting a Vehicle Maintenance.
driver to drive without
the vehicle's cargo being
properly distributed and
adequately secured.
Critical.......................... 395.1(h)(1)(i) Requiring or permitting a HOS Compliance.
property-carrying CMV
driver to drive more than
15 hours (Driving in
Alaska).
Critical.......................... 395.1(h)(1)(ii) Requiring or permitting a HOS Compliance.
property-carrying CMV
driver to drive after
having been on duty 20
hours (Driving in Alaska).
Critical.......................... 395.1(h)(1)(iii) Requiring or permitting a HOS Compliance.
property-carrying CMV
driver to drive after
having been on duty more
than 70 hours in 7
consecutive days (Driving
in Alaska).
Critical.......................... 395.1(h)(1)(iv) Requiring or permitting a HOS Compliance.
property-carrying CMV
driver to drive after
having been on duty more
than 80 hours in 8
consecutive days (Driving
in Alaska).
Critical.......................... 395.1(h)(2)(i) Requiring or permitting a HOS Compliance.
passenger-carrying CMV
driver to drive more than
15 hours (Driving in
Alaska).
Critical.......................... 395.1(h)(2)(ii) Requiring or permitting a HOS Compliance.
passenger-carrying CMV
driver to drive after
having been on duty 20
hours (Driving in Alaska).
Critical.......................... 395.1(h)(2)(iii) Requiring or permitting a HOS Compliance.
passenger-carrying CMV
driver to drive after
having been on duty more
than 70 hours in 7
consecutive days (Driving
in Alaska).
Critical.......................... 395.1(h)(2)(iv) Requiring or permitting a HOS Compliance.
passenger-carrying CMV
driver to drive after
having been on duty more
than 80 hours in 8
consecutive days (Driving
in Alaska).
Critical.......................... 395.1(o) Requiring or permitting a HOS Compliance.
property-carrying CMV
driver to drive after
having been on duty 16
consecutive hours.
Critical.......................... 395.3(a)(1) Requiring or permitting a HOS Compliance.
property-carrying CMV
driver to drive without
taking an off-duty period
of at least 10
consecutive hours prior
to driving.
Critical.......................... 395.3(a)(2) Requiring or permitting a HOS Compliance.
property-carrying CMV
driver to drive after the
end of the 14th hour
after coming on duty.
Critical.......................... 395.3(b)(1) Requiring or permitting a HOS Compliance.
property-carrying CMV
driver to drive after
having been on duty more
than 60 hours in 7
consecutive days.
Critical.......................... 395.3(b)(2) Requiring or permitting a HOS Compliance.
property-carrying CMV
driver to drive after
having been on duty more
than 70 hours in 8
consecutive days.
Critical.......................... 395.5(a)(1) Requiring or permitting a HOS Compliance.
passenger-carrying CMV
driver to drive more than
10 hours.
Critical.......................... 395.5(a)(2) Requiring or permitting a HOS Compliance.
passenger-carrying CMV
driver to drive after
having been on duty 15
hours.
Critical.......................... 395.5(b)(2) Requiring or permitting a HOS Compliance.
passenger-carrying CMV
driver to drive after
having been on duty more
than 70 hours in 8
consecutive days.
Critical.......................... 395.8(a) Failing to require driver HOS Compliance.
to make a record of duty
status.
Critical.......................... 395.8(e) False reports of records HOS Compliance.
of duty status.
Critical.......................... 395.8(i) Failing to require driver HOS Compliance.
to forward within 13 days
of completion, the
original of the record of
duty status.
Critical.......................... 395.8(k)(1) Failing to preserve HOS Compliance.
driver's record of duty
status for 6 months.
Critical.......................... 395.8(k)(1) Failing to preserve HOS Compliance.
driver's records of duty
status supporting
documents for 6 months.

[[Page 3582]]

Critical.......................... 396.3(b) Failing to keep minimum Vehicle Maintenance.
records of inspection and
vehicle maintenance.
Acute............................. 396.9(c)(2) Requiring or permitting Vehicle Maintenance.
the operation of a motor
vehicle declared ``out-of-
service'' before repairs
were made.
Acute............................. 396.11(c) Failing to correct Out-of- Vehicle Maintenance.
Service defects listed by
driver in a driver
vehicle inspection report
before the vehicle is
operated again.
----------------------------------------------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\67\ See 72 FR 62293, at 62299 (Nov. 2, 2007) and 73 FR 53483,
at 53487 (Sept. 16, 2008).
---------------------------------------------------------------------------

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.
Sec. 390.35--Making, or causing to make, fraudulent or
intentionally false statements or records or reproducing fraudulent
records.
Sec. 392.4(b)--Requiring or permitting a driver to drive
while under the influence of, or in possession of, a narcotic drug,
amphetamine, or any other substance capable of rendering the driver
incapable of safely operating a motor vehicle.
Sec. 392.5(b)(1)--Requiring or permitting a driver to
drive a motor vehicle while under the influence of, or in possession
of, an intoxicating beverage.
Sec. 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.
Sec. 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.
Sec. 392.80(a)--No driver shall engage in texting while
driving.
Sec. 392.80(b)--No motor carrier shall allow or require
its drivers to engage in texting while driving.
Sec. 392.82(a)(1)--No driver shall use a hand-held mobile
telephone while driving a commercial motor vehicle.
Sec. 392.82(a)(2)--No motor carrier shall allow or
require its drivers to use a hand-held mobile telephone while driving a
CMV.
Sec. 396.7(a)--Requiring or permitting operation of a
motor vehicle in a condition likely to cause an accident or breakdown
of the vehicle.
Sec. 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'').
---------------------------------------------------------------------------

\68\ 49 U.S.C. 31144(a)(1).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\69\ A Motor Carrier's Guide to Improving Highway Safety, FMCSA-
ESO-08-003, December 2009. Available at https://www.fmcsa.dot.gov/safety-security/eta/index.htm.
---------------------------------------------------------------------------

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

[[Page 3583]]

on-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\
---------------------------------------------------------------------------

\70\ 49 U.S.C. 31144(i)(1), (2) and (4).
\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).
\72\ MAP-21 section 32707(b), 126 Stat. 814.
---------------------------------------------------------------------------

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

[[Page 3584]]

such 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.
---------------------------------------------------------------------------

\73\ 49 U.S.C. 31144(i)(1), (2) and (4), added by section
32707(a) of MAP-21.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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
--------------------------------------------------------------------------------------------------------------------------------------------------------
All proposed unfit methods: Proposed unfit
--------------------------------------------------------- Proposed unfit Proposed unfit method 3: Number
method 1: Number method 2: Number of carriers
of carriers of carriers proposed unfit
Total number of proposed unfit proposed unfit based on
Failure standard option Total number of crashes for Associated crash based on based on inspection and
carriers proposed carriers proposed rate per 100 inspection data investigations investigation
unfit unfit power units (PUs) (and associated (and associated (and associated
crash rate per crash rate per crash rate per
100 PUs) 100 PUs) 100 PUs)
--------------------------------------------------------------------------------------------------------------------------------------------------------
No. 1--Equivalent to 95 and 98 3,291 2,124 3.93 479 (3.75) 2,656 (3.94) 156 (4.66)
percentiles..........................
No. 2--Equivalent to 96 and 99 3,056 1,862 4.39 262 (8.28) 2,674 (3.98) 120 (4.61)
percentiles..........................
--------------------------------------------------------------------------------------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\75\ See docket FMCSA-2004-18898 titled Comprehensive Safety
Analysis 2010 Initiative.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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

[[Page 3585]]

for 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 Sec. 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.
---------------------------------------------------------------------------

\77\ The proposed definition of the term Field Administrator
includes the term Regional Field Administrator.
---------------------------------------------------------------------------

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 Sec. 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\
---------------------------------------------------------------------------

\78\ The carrier will retain the same USDOT number. See Unified
Registration System final rule, August 23, 2013 (78 FR 52608).
---------------------------------------------------------------------------

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

[[Page 3586]]

operating 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.
---------------------------------------------------------------------------

\79\ John A. Volpe National Transportation Systems Center,
``Carrier Safety Measurement System (CSMS) Violation Severity
Weights,'' December 2010.
---------------------------------------------------------------------------

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

[[Page 3587]]

elements 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.
---------------------------------------------------------------------------

\80\ 166 F.3d 374 (D.C. Cir. 1999).
\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).
---------------------------------------------------------------------------

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 (Sec. Sec. 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 Sec. Sec. 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 Sec. 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 Sec. 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 Sec.
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

[[Page 3588]]

and 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 Sec. 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 Sec.
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 Sec.
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 Sec. 385.15 or Sec. 385.16, or a review
of a request under Sec. 385.18. This new paragraph utilizes a
provision moved from current Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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.
---------------------------------------------------------------------------

\82\ 49 U.S.C. 31144(c)(4).
---------------------------------------------------------------------------

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.

[[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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 3590]]

period immediately before these proposed rules would go into effect.
Subpart B (Sec. Sec. 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 Sec. Sec. 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.
---------------------------------------------------------------------------

\83\ 49 U.S.C. 31144(c).
\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.
---------------------------------------------------------------------------

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 (Sec. Sec. 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 Sec. Sec. 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\
---------------------------------------------------------------------------

\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.
\86\ 67 FR 12776, March 19, 2002, as amended at 72 FR 55701,
Oct. 1, 2007; 73 FR 76819, Dec. 17, 2008.
---------------------------------------------------------------------------

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 Sec. Sec.
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 Sec. 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 Sec. Sec.
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 Sec. 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 (Sec. 385.607) and I (Sec. Sec. 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,

[[Page 3591]]

part 385, subparts H (Sec. 385.607) and I (Sec. Sec. 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\
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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).
\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.
---------------------------------------------------------------------------

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\
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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.
\90\ See 49 CFR 180.407, Requirements for test and inspection of
specification cargo tanks.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\91\ See 49 CFR 180.605, Requirements for periodic testing,
inspection and repair of portable tanks.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\92\ See Sec. Sec. 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.
\93\ See 49 CFR 180.407, Requirements for test and inspection of
specification cargo tanks.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\94\ See https://www.gpo.gov/libraries. Accessed on April 6,
2015.
---------------------------------------------------------------------------

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

[[Page 3592]]

requires 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.
---------------------------------------------------------------------------

\95\ See https://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleI-chap5-subchapII-sec521.pdf. Accessed
on April 6, 2015.
---------------------------------------------------------------------------

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

[[Page 3593]]

presents 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)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fatal Injury Tow-away
Carriers identified as unfit under: Relation Carriers Power units Crashes Crash rate crashes crashes crashes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed SFD \A\.................... A...................... 2,822 42,437 1,862 4.39 55 688 1,119
Current SFD \B\..................... B...................... 1,123 11,365 441 3.88 14 180 247
Both Current and Proposed SFD....... C...................... 1,017 10,123 406 4.01 12 162 232
Proposed SFD, But Not Current SFD... A--C................... 1,805 32,314 1,456 4.51 43 526 887
Current SFD, But Not Proposed SFD... B--C................... 106 1,242 35 2.82 2 18 15
Net Gain Attributable to Proposed A--B................... 1,699 31,072 1,421 4.57 41 508 872
SFD.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------

\96\ Volpe National Transportation Center, ``FMCSA Safety
Program Effectiveness Measurement: Compliance Review Effectiveness
Model, Results for Carriers with Compliance Reviews in Fiscal Year
2008''.
\97\ https://ai.fmcsa.dot.gov/PE/PEReport.aspx?rp=crNat accessed
on April 6, 2015.
---------------------------------------------------------------------------

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

[[Page 3594]]

carriers ordered OOS with carriers of average overall safety
performance.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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
x (1.0217\4\), 554 injury (553.55 = 508 x (1.0217\4\)), and 950 tow-
away crashes (950.19 = 872 x (1.0217\4\) 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 x (1.0118\4\)). 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).
---------------------------------------------------------------------------

\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 https://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.
---------------------------------------------------------------------------

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 x
(1.0118\4\)). 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 x (1.0118\4\)). 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 x 11), the injury crash
component is $60.4 million ($60,416,000 = $472,000 x 128), and the tow-
away crash component is $16.3 million ($16,280,000 = $74,000 x 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 crash Benefit
Net gain to new SFD reduction Cost per crash (millions)
----------------------------------------------------------------------------------------------------------------
Fatal Crashes................................................... 11 $11,542,000 $127.0
Injury Crashes.................................................. 128 472,000 60.4
Tow-Away Crashes................................................ 220 74,000 13.3

[[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 x (1.0217\4\)).
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 x 4.97 power units per carrier x 320 carriers) working for
carriers ordered OOS that would be adversely affected in this manner.
---------------------------------------------------------------------------

\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. https://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.
---------------------------------------------------------------------------

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 x 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

[[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

[[Page 3597]]

rule. FMCSA also requests comments on this Initial Regulatory
Flexibility Analysis and whether there would be significant economic
impacts on substantial numbers of small entities.
---------------------------------------------------------------------------

\101\ Presidential Memorandum on Regulatory Flexibility, Small
Business, and Job Creation, 76 FR 3827 (Jan. 21, 2011).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\102\ 2 U.S.C. 1501, et seq.
\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 https://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.
---------------------------------------------------------------------------

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 x (1.0217\4\)). 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 x 4.97 power units per carrier x
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 x 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.
---------------------------------------------------------------------------

\104\ 49 U.S.C. 31102(a) and (b).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\105\ 44 U.S.C. 3501 et seq.
\106\ 44 U.S.C. 3518(c)(1)(B)(ii).
\107\ 5 CFR 1320.4(c).
---------------------------------------------------------------------------

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

[[Page 3598]]

operating 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.
---------------------------------------------------------------------------

\108\ 42 U.S.C. 4321 et seq.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\109\ 42 U.S.C. 7401 et seq.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\110\ Public Law 108-447, Div. H, 118 Stat. 2809, 3268-3270
(Dec. 8, 2004).
---------------------------------------------------------------------------

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

[[Page 3599]]

millions 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 https://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
https://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 https://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 8\1/2\ 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 https://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.

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.

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

PART 350--COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM

0
1. The authority citation for part 350 continues to read as follows:

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

0
2. Amend Sec. 350.201 by revising paragraph (a) to read as follows:

Sec. 350.201 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.
* * * * *

[[Page 3600]]

PART 365--RULES GOVERNING APPLICATIONS FOR OPERATING AUTHORITY

0
3. The authority citation for part 365 continues to read as follows:

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.

0
4. Amend Sec. 365.109 by revising paragraph (a)(3) to read as follows:

Sec. 365.109 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.
* * * * *
0
5. Amend Sec. 365.507 by revising paragraph (f) to read as follows:

Sec. 365.507 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.

PART 385--SAFETY FITNESS PROCEDURES

0
6. The authority citation for part 385 is revised to read as follows:

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.

0
7. Amend Sec. 385.1 by revising paragraph (a) to read as follows:

Sec. 385.1 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.
* * * * *
0
8. Amend Sec. 385.3 as follows:
0
a. Add an undesignated introductory paragraph;
0
b. Remove the definitions of ``Preventable accident,'' ``Reviews,'' and
``Safety ratings''; and
0
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.
The additions read as follows:

Sec. 385.3 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 Sec.
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.
* * * * *

[[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
https://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 Sec. 385.5 and
may not operate a commercial motor vehicle in interstate or intrastate
commerce.
0
9. Revise Sec. 385.5 to read as follows:

Sec. 385.5 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 Sec. 390.5 of this
chapter, and hazardous materials incidents, as defined in Sec. Sec.
171.15 and 171.16 of this title.
0
10. Revise Sec. 385.7 to read as follows:

Sec. 385.7 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.
0
11. Add Sec. 385.8 to read as follows:

Sec. 385.8 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

[[Page 3602]]

or 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
Sec. 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.
0
12. Revise Sec. 385.9 to read as follows:

Sec. 385.9 Determining a carrier's safety fitness.

(a) FMCSA, using the factors prescribed in Sec. 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
Sec. 385.5 and shall assign a safety fitness determination
accordingly.
(b) Except as noted in Sec. Sec. 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 Sec.
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
Sec. 385.15 or Sec. 385.16, or any review of a request under Sec.
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 Sec.
385.5(a) will be issued as soon as practicable.
0
13. Revise Sec. 385.11 to read as follows:

Sec. 385.11 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 Sec. 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 Sec. 385.13 will be imposed
after 45 or 60 days, as provided in Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 385.18.
0
14. Add Sec. 385.12 to read as follows:

Sec. 385.12 Revocation procedures for unfit safety fitness
determination.

A proposed safety fitness determination of ``unfit'' under Sec.
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 Sec. 385.17 or the safety fitness
determination is not changed as a result of an administrative review
proceeding under Sec. 385.15 or Sec. 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 Sec. 385.13(e) or Sec. 385.17(f).
0
15. Revise Sec. 385.13 to read as follows:

Sec. 385.13 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 https://[FMCSA will provide the Web site
in the final rule].
(1) Motor carriers transporting hazardous materials in quantities
requiring placarding and motor carriers

[[Page 3603]]

transporting 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.
0
15. Revise Sec. 385.15 to read as follows:

Sec. 385.15 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 Sec. 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.

[[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.
0
16. Add Sec. 385.16 to read as follows:

Sec. 385.16 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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.
0
17. Revise Sec. 385.17 to read as follows:

Sec. 385.17 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 Sec. 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 Sec. Sec. 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.

[[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 Sec. Sec. 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 Sec. Sec. 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
Sec. 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.
0
18. Add Sec. 385.18 to read as follows:

Sec. 385.18 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 Sec. 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 Sec. 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.
0
19. Amend Sec. 385.19 by revising the section heading and paragraphs
(a) and (b) to read as follows:

Sec. 385.19 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.
* * * * *
0
20. Add Sec. 385.21 to read as follows:

Sec. 385.21 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 Sec. 385.11 in effect before [EFFECTIVE DATE
OF FINAL RULE], the motor carrier remains subject to the provisions of
Sec. 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 Sec. 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 Sec.
385.15 in effect before [EFFECTIVE DATE OF FINAL RULE]; and/or
(2) Request a change in safety rating under the provisions of Sec.
385.17 in effect before [EFFECTIVE DATE OF

[[Page 3606]]

FINAL RULE]. If the notice of safety rating and safety fitness
determination thereafter becomes final, the motor carrier is subject to
the provisions of Sec. 385.13 in effect before [EFFECTIVE DATE OF
FINAL RULE].
0
21. Amend Sec. 385.101 as follows:
0
a. Add an undesignated introductory paragraph; and
0
b. Revise the definitions of ``Provisional operating authority'' and
``Safety audit.''
The addition and revisions read as follows:

Sec. 385.101 Definitions.

The following definitions apply to this subpart:
* * * * *
Provisional operating authority means the registration under Sec.
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 Sec. 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.
0
22. Amend Sec. 385.103 by revising paragraph (e) to read as follows:

Sec. 385.103 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.
0
23. Amend Sec. 385.105 by revising paragraphs (a) introductory text
and (c) to read as follows:

Sec. 385.105 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.
0
24. Revise Sec. 385.109 to read as follows:

Sec. 385.109 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 Sec. 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.

Sec. 385.111, 385.113, and 385.115 [Removed and Reserved]

0
25. Remove and reserve Sec. Sec. 385.111, 385.113, and 385.115.
0
26. Amend Sec. 385.117 by revising paragraphs (b) and (c) to read as
follows:

Sec. 385.117 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.
* * * * *

Sec. 385.201 [Amended]

0
27. Amend Sec. 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,''.

Sec. 385.203 [Amended]

0
28. Amend Sec. 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,''.
0
29. Amend Sec. 385.307 by redesignating paragraphs (a) through (c) as
paragraphs (b) through (d) and adding paragraph (a) to read as follows:

Sec. 385.307 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.
* * * * *

Sec. 385.308 [Amended]

0
30. Amend Sec. 385.308 as follows:
0
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,''.
0
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,''.
0
c. In paragraph (c), remove the phrase ``a compliance review,'' and
add, in its place, the phrase ``an investigation''.

Sec. 385.317 [Amended]

0
31. Amend Sec. 385.317 by removing the phrase ``a compliance review''
and adding, in its place, the phrase ``an investigation or on road
safety data''.

Sec. 385.333 [Amended]

0
32. Amend Sec. 385.333 as follows:

[[Page 3607]]

0
a. In paragraph (b), remove the phrase `` `unfit' after a compliance
review'' and add, in its place, the word ``unfit,''.
0
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,''.
0
33. Revise Sec. 385.335 to read as follows:

Sec. 385.335 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.
0
34. Amend Sec. 385.407 by revising paragraph (a)(1) to read as
follows:

Sec. 385.407 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
* * * * *
0
35. Amend Sec. 385.409 by revising paragraph (c) to read as follows:

Sec. 385.409 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 Sec. 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.
* * * * *
0
36. Amend Sec. 385.413 by revising the section heading and paragraph
(a) to read as follows:

Sec. 385.413 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.
* * * * *
0
37. Amend Sec. 385.421 by revising paragraphs (a)(3) and (c)(1) to
read as follows:

Sec. 385.421 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;
* * * * *
0
38. Amend Sec. 385.423 by revising paragraph (a) to read as follows:

Sec. 385.423 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 Sec. 385.15; or
(ii) A review based on unconsidered inspection data as set forth in
Sec. 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.
* * * * *
0
39. Amend Sec. 385.503 by revising paragraph (a) to read as follows:

Sec. 385.503 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.
* * * * *
0
40. Amend Sec. 385.607 by revising paragraph (g) to read as follows:

Sec. 385.607 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.
0
41. Amend Sec. 385.701 by adding in alphabetical order a definition
for ``Comprehensive investigation'' and revising the definition for
``New entrant registration'' to read as follows:

Sec. 385.701 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 Sec.
385.715.
* * * * *
0
42. Amend Sec. 385.703 by revising paragraphs (b) and (d) to read as
follows:

Sec. 385.703 Safety monitoring system.

* * * * *
(b) Safety monitoring. Each non-North America-domiciled carrier new
entrant

[[Page 3608]]

will 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.
0
43. Amend Sec. 385.705 by revising the introductory text of paragraph
(a) and paragraph (c) to read as follows:

Sec. 385.705 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.
0
44. Revise Sec. 385.707 to read as follows:

Sec. 385.707 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.

Sec. Sec. 385.709, 385.711, and 385.713 [Removed and Reserved]

0
45. Remove and reserve Sec. Sec. 385.709, 385.711, and 385.713.
0
46. Amend Sec. 385.715 by revising paragraphs (b) and (c) to read as
follows:

Sec. 385.715 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.
* * * * *
0
47. Revise appendix B to part 385 to read as follows:

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 Sec. 385.5, Safety fitness
standard, and Sec. 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 Sec. 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

[[Page 3609]]

relate 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
Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 3610]]

listed 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:
[GRAPHIC] [TIFF OMITTED] TP21JA16.003

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.

[[Page 3611]]

Table 2-1 to Appendix B to Part 385--Unsafe Driving Failure Standards:
Straight Truck Segment
------------------------------------------------------------------------
BASIC failure
standard
Safety-event group (number of inspections with unsafe (equivalent to
driving violations) the 96th
percentile)
------------------------------------------------------------------------
11-18................................................ 9.64
19-49................................................ 5.12
50+.................................................. 1.47
------------------------------------------------------------------------

Table 2-2 to Appendix B to Part 385--Unsafe Driving Failure Standards:
Combination Segment
------------------------------------------------------------------------
BASIC failure
Safety-event group (number of inspections with standard (96%
unsafe driving violations) threshold)
------------------------------------------------------------------------
11-21................................................ 14.21
22-57................................................ 9.58
58-149............................................... 6.26
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:
[GRAPHIC] [TIFF OMITTED] TP21JA16.004

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:
[GRAPHIC] [TIFF OMITTED] TP21JA16.012

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 unit Utilization factor
------------------------------------------------------------------------
Less Than 20,000....................... 1.
20,000-60,000.......................... VMT per Power Unit/20,000.
60,000-200,000......................... 3.
Greater Than 200,000................... 1.
No Recent VMT Information.............. 1.
------------------------------------------------------------------------

2.4.2 HOS Compliance BASIC: A motor carrier's measure is
calculated using driver inspections as follows:
[GRAPHIC] [TIFF OMITTED] TP21JA16.005

[[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
------------------------------------------------------------------------
BASIC failure
Safety-event group (number of inspections) standard (96%
threshold)
------------------------------------------------------------------------
11-20................................................... 4.15
21-100.................................................. 3.13
101-500................................................. 2.2
501+.................................................... 1.54
------------------------------------------------------------------------

2.4.3 Driver Fitness BASIC: A motor carrier's measure is
calculated using driver inspections as follows:
[GRAPHIC] [TIFF OMITTED] TP21JA16.006

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
------------------------------------------------------------------------
BASIC failure
Safety-event group (number of inspections) standard (99%
threshold)
------------------------------------------------------------------------
11-20................................................... 2.74
21-100.................................................. 1.39
101-500................................................. 0.50
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:
[GRAPHIC] [TIFF OMITTED] TP21JA16.007

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
------------------------------------------------------------------------
BASIC failure
Safety-event group (number of inspections) standard (99%
threshold)
------------------------------------------------------------------------
11-20................................................... 18.79
21-100.................................................. 16.12
101-500................................................. 11.82
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.
[GRAPHIC] [TIFF OMITTED] TP21JA16.008

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
------------------------------------------------------------------------
BASIC failure
Safety-event group (number of inspections) standard (99%
threshold)
------------------------------------------------------------------------
11-15................................................... 6.87
16-40................................................... 4.82
41-100.................................................. 2.56

[[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
----------------------------------------------------------------------------------------------------------------
Behavior analysis and
49 CFR Section Description of violation safety improvement
category (BASIC)
----------------------------------------------------------------------------------------------------------------
173.24(b)(1)............................ Accepting for transportation or HM Compliance.
transporting a package that has an
identifiable release of a HM to the
environment.
173.24b(d)(2)........................... Loading bulk packaging with an HM which HM Compliance.
exceeds the maximum weight of lading
marked on the specification plate.
173.33(a)(1)............................ Offering or accepting an HM for HM Compliance.
transportation in an unauthorized cargo
tank.
173.33(a)(2)............................ Loading or accepting for transportation HM Compliance.
two or more materials in a cargo tank
motor vehicle which if mixed result in an
unsafe condition.
173.33(b)(1)............................ Loading HM in a cargo tank if during HM Compliance.
transportation any part of the tank in
contact with the HM would have a
dangerous reaction.
177.800(c).............................. Failing to instruct a category of Driver Fitness.
employees in HM regulations.
177.817(a).............................. Transporting a shipment of HM not HM Compliance.
accompanied by a properly prepared
shipping paper.
177.834(i).............................. Loading or unloading a cargo tank without HM Compliance.
a qualified person in attendance.
177.848(d).............................. Failing to store, load, or transport HM in HM Compliance.
accordance with the segregation table.
180.407(a).............................. Transporting a shipment of HM in a cargo HM Compliance.
tank that has not been inspected or
retested in accordance with Sec.
180.407.
382.301(a).............................. Using a driver before the motor carrier Controlled Substances.
has received a negative pre-employment
controlled substance test result.
382.303(a).............................. Failing to conduct post-accident testing Controlled Substances
on driver for alcohol.
382.303(b).............................. Failing to conduct post-accident testing Controlled Substances.
on driver for controlled substances.
382.305(b)(1)........................... Failing to conduct random alcohol testing Controlled Substances.
at an annual rate of not less than the
applicable annual rate of the average
number of driver positions.
382.305(b)(2)........................... Failing to conduct random controlled Controlled Substances.
substances testing at an annual rate of
not less than the applicable annual rate
of the average number of driver positions.
382.309................................. Using a driver without a return to duty Controlled Substances.
test.
382.503................................. Allowing a driver to perform a safety Controlled Substances.
sensitive function, after engaging in
conduct prohibited by subpart B, without
being evaluated by a substance abuse
professional, as required by Sec.
382.605.
383.3(a)/383.23(a)...................... Using a driver who does not possess a Driver Fitness.
valid CDL.
391.45(a)............................... Using a driver not medically examined and Driver Fitness.
certified.
391.45(b)(1)............................ Using a driver not medically examined and Driver Fitness.
certified during the preceding 24 months.
391.51(a)............................... Failing to maintain a driver qualification Driver Fitness.
file on each driver employed.
392.2................................... Operating a motor vehicle not in Unsafe Driving.
accordance with the laws, ordinances, and
regulations of the jurisdiction in which
it is being operated.
392.6................................... Scheduling a run which would necessitate Unsafe Driving.
the vehicle being operated at speeds in
excess of those prescribed.
392.9(a)(1)............................. Requiring or permitting a driver to drive Vehicle Maintenance.
without the vehicle's cargo being
properly distributed and adequately
secured.
395.1(h)(1)(i).......................... Requiring or permitting a property- HOS Compliance.
carrying CMV driver to drive more than 15
hours (Driving in Alaska).
395.1(h)(1)(ii)......................... Requiring or permitting a property- HOS Compliance.
carrying CMV driver to drive after having
been on duty 20 hours (Driving in Alaska).
395.1(h)(1)(iii)........................ Requiring or permitting a property- HOS Compliance.
carrying CMV driver to drive after having
been on duty more than 70 hours in 7
consecutive days (Driving in Alaska).
395.1(h)(1)(iv)......................... Requiring or permitting a property- HOS Compliance.
carrying CMV driver to drive after having
been on duty more than 80 hours in 8
consecutive days (Driving in Alaska).
395.1(h)(2)(i).......................... Requiring or permitting a passenger- HOS Compliance.
carrying CMV driver to drive more than 15
hours (Driving in Alaska).
395.1(h)(2)(ii)......................... Requiring or permitting a passenger- HOS Compliance.
carrying CMV driver to drive after having
been on duty 20 hours (Driving in Alaska).
395.1(h)(2)(iii)........................ Requiring or permitting a passenger- HOS Compliance.
carrying CMV driver to drive after having
been on duty more than 70 hours in 7
consecutive days (Driving in Alaska).
395.1(h)(2)(iv)......................... Requiring or permitting a passenger- HOS Compliance.
carrying CMV driver to drive after having
been on duty more than 80 hours in 8
consecutive days (Driving in Alaska).

[[Page 3614]]

395.1(o)................................ Requiring or permitting a property- HOS Compliance.
carrying CMV driver to drive after having
been on duty 16 consecutive hours.
395.3(a)(1)............................. Requiring or permitting a property- HOS Compliance.
carrying CMV driver to drive without
taking an off-duty period of at least 11
consecutive hours prior to driving.
395.3(a)(2)............................. Requiring or permitting a property- HOS Compliance.
carrying CMV driver to drive after the
end of the 14th hour after coming on duty.
395.3(b)(1)............................. Requiring or permitting a property- HOS Compliance.
carrying CMV driver to drive after having
been on duty more than 60 hours in 7
consecutive days.
395.3(b)(2)............................. Requiring or permitting a property- HOS Compliance.
carrying CMV driver to drive after having
been on duty more than 70 hours in 8
consecutive days.
395.5(a)(1)............................. Requiring or permitting a passenger- HOS Compliance.
carrying CMV driver to drive more than 10
hours..
395.5(a)(2)............................. Requiring or permitting a passenger- HOS Compliance.
carrying CMV driver to drive after having
been on duty 15 hours.
395.5(b)(1)............................. Requiring or permitting a passenger- HOS Compliance.
carrying CMV driver to drive after having
been on duty more than 60 hours in 7
consecutive days.
395.5(b)(2)............................. Requiring or permitting a passenger- HOS Compliance.
carrying CMV driver to drive after having
been on duty more than 70 hours in 8
consecutive days.
395.8(a)................................ Failing to require driver to make a record HOS Compliance.
of duty status.
395.8(e)................................ False reports of records of duty status... HOS Compliance
395.8(i)................................ Failing to require driver to forward HOS Compliance.
within 13 days of completion, the
original of the record of duty status.
395.8(k)(1)............................. Failing to preserve driver's record of HOS Compliance.
duty status for 6 months.
395.8(k)(1)............................. Failing to preserve driver's records of HOS Compliance.
duty status supporting documents for 6
months.
396.3(b)................................ Failing to keep minimum records of Vehicle Maintenance.
inspection and vehicle 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
----------------------------------------------------------------------------------------------------------------
Behavior analysis and safety
49 CFR Section Description of violation improvement category (BASIC)
----------------------------------------------------------------------------------------------------------------
177.801............................... Accepting for transportation or HM Compliance.
transporting a forbidden material.
382.115(a)............................ Failing to implement an alcohol and/or Controlled Substances.
controlled substances testing program
(domestic motor carrier).
382.115(b)............................ Failing to implement an alcohol and/or Controlled Substances.
controlled substances testing program
(foreign motor carrier).
382.201............................... Using a driver known to have an alcohol Controlled Substances.
concentration of 0.04 or greater.
382.211............................... Using a driver who has refused to submit Controlled Substances.
to an alcohol or controlled substances
test required under part 382.
382.215............................... Using a driver known to have tested Controlled Substances.
positive for a controlled substance, or
to have otherwise violated Sec.
382.215.
382.305............................... Failing to implement a random controlled Controlled Substances.
substances and/or an alcohol testing
program.
383.37(a)............................. Knowingly allowing, requiring, Driver Fitness.
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.
383.51(a)............................. Knowingly allowing, requiring, Driver Fitness.
permitting, or authorizing a driver to
drive who is disqualified to drive a
CMV.
391.11(b)(4).......................... Using a physically unqualified driver... Driver Fitness.
391.15(a)............................. Using a disqualified driver............. Driver Fitness.
396.9(c)(2)........................... Requiring or permitting the operation of Vehicle Maintenance.
a motor vehicle declared ``out-of-
service'' before repairs were made.
396.11(c)............................. Failing to correct out-of-service Vehicle Maintenance.
defects listed by driver in a driver
vehicle inspection report before the
vehicle is operated again.
----------------------------------------------------------------------------------------------------------------

[[Page 3615]]

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 https://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.

[[Page 3616]]

[GRAPHIC] [TIFF OMITTED] TP21JA16.009

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.
[GRAPHIC] [TIFF OMITTED] TP21JA16.010

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

[[Page 3617]]

sufficient 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.
[GRAPHIC] [TIFF OMITTED] TP21JA16.011

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
----------------------------------------------------------------------------------------------------------------
Violation description shown on
driver/vehicle examination report Violation
49 CFR Section given to CMV driver after Violation group description severity
inspection weight
----------------------------------------------------------------------------------------------------------------
177.800(d)........................ Unnecessary delay in HM HM Related.................. 1
transportation to destination.
177.804(b)........................ Failure to comply with 49 CFR Texting..................... 10
392.80--Texting while Operating
a CMV--Placardable HM.
177.804(c)........................ Fail to comply with 392.82--Using Phone Call.................. 10
Mobile Phone while Operating a
CMV--HM.
392.2............................. Failure to obey traffic control Dangerous Driving........... 5
device (392.2C).
392.2............................. Headlamps--Failing to dim when Misc Violations............. 3
required (392.2DH).
392.2............................. Following too close (392.2FC).... Dangerous Driving........... 5
392.2............................. Improper lane change (392.2LC)... Dangerous Driving........... 5
392.2............................. Lane Restriction violation Misc Violations............. 3
(392.2LV).
392.2............................. Improper passing (392.2P)........ Dangerous Driving........... 5
392.2............................. Unlawfully parking and/or leaving Other Driver Violations..... 1
vehicle in the roadway (392.2PK).
392.2............................. Reckless driving (392.2R)........ Reckless Driving............ 10
392.2............................. Railroad Grade Crossing violation Dangerous Driving........... 5
(392.2RR).
392.2............................. Speeding (392.2S)................ Speeding Related............ 1
392.2............................. State/Local Laws--Speeding 6-10 Speeding 2.................. 4
miles per hour over the speed
limit (392.2-SLLS2).
392.2............................. State/Local Laws--Speeding 11-14 Speeding 3.................. 7
miles per hour over the speed
limit (392.2-SLLS3).
392.2............................. State/Local Laws--Speeding 15 or Speeding 4.................. 10
more miles per hour over the
speed limit (392.2-SLLS4).
392.2............................. State/Local Laws--Speeding work/ Speeding 4.................. 10
construction zone (392.2-SLLSWZ).
392.2............................. State/Local Laws--Operating a CMV Texting..................... 10
while texting (392.2-SLLT).
392.2............................. Improper turns (392.2T).......... Dangerous Driving........... 5
392.2............................. Failure to yield right of way Dangerous Driving........... 5
(392.2Y).
392.6............................. Scheduling run to necessitate Speeding Related............ 5
speeding.
392.10(a)(1)...................... Failing to stop at railroad Dangerous Driving........... 5
crossing--bus.

[[Page 3618]]

392.10(a)(2)...................... Failing to stop at railroad Dangerous Driving........... 5
crossing--chlorine.
392.10(a)(3)...................... Failing to stop at railroad Dangerous Driving........... 5
crossing--placard.
392.10(a)(4)...................... Failing to stop at railroad Dangerous Driving........... 5
crossing--Cargo Tank.
392.14............................ Failed to use caution for Dangerous Driving........... 5
hazardous condition.
392.16............................ Failing to use seat belt while Seat Belt................... 7
operating CMV.
392.22(a)......................... Failing to use hazard warning Other Driver Violations..... 1
flashers.
392.60(a)......................... Unauthorized passenger on board Other Driver Violations..... 1
CMV.
392.62............................ Unsafe bus operations............ Other Driver Violations..... 1
392.62(a)......................... Bus--Standees forward of the Other Driver Violations..... 1
standee line.
392.71(a)......................... Using or equipping a CMV with Speeding Related............ 5
radar detector.
392.80(a)......................... Driving a CMV while Texting...... Texting..................... 10
392.80(a)......................... Driving a CMV while Texting Texting..................... 10
(390.17DT).
392.82(a)(1)...................... Using a hand-held mobile Phone Call.................. 10
telephone while operating a CMV.
392.82(a)(2)...................... Allowing or requiring driver to Phone Call.................. 10
use a hand-held mobile telephone
while operating a CMV.
397.3............................. State/local laws ordinances HM Related.................. 1
regulations.
397.13............................ Smoking within 25 feet of HM HM Related.................. 1
vehicle.
398.4............................. Driving a vehicle to transport Other Driver Violations..... 1
migrant workers in noncompliance
with part 398.
----------------------------------------------------------------------------------------------------------------

Table 2--HOS Compliance BASIC Violations
----------------------------------------------------------------------------------------------------------------
Violation description shown on
driver/vehicle examination report Violation
49 CFR Section given to CMV driver after Violation group description severity
inspection weight
----------------------------------------------------------------------------------------------------------------
392.2............................. State/Local Hours-of-Service Hours....................... 7
(392.2H).
392.3............................. Operating a CMV while ill/ Jumping OOS/Driving Fatigued 10
fatigued.
392.3............................. Fatigue--Operate a passenger- Jumping OOS/Driving Fatigued 10
carrying CMV while impaired by
fatigue. (392.3-FPASS).
392.3............................. Fatigue--Operate a property- Jumping OOS/Driving Fatigued 10
carrying CMV while impaired by
fatigue. (392.3-FPROP).
392.3............................. Illness--Operate a CMV while Jumping OOS/Driving Fatigued 10
impaired by illness or other
cause. (392.3-I).
395.1(h)(1)....................... 15, 20, 70/80 HOS violations Hours....................... 7
(Alaska-Property).
395.1(h)(2)....................... 15, 20, 70/80 HOS violations Hours....................... 7
(Alaska-Passenger).
395.1(h)(3)....................... Adverse driving conditions Hours....................... 7
violations (Alaska).
395.1(o).......................... 16 hour rule violation (Property) Hours....................... 7
395.3(a)(1)....................... Requiring or permitting driver to Hours....................... 7
drive more than 11 hours.
395.3............................. 11 hour rule violation (Property) Hours....................... 7
(395.3A1R).
395.3(a)(2)....................... Requiring or permitting driver to Hours....................... 7
drive after 14 hours on duty.
395.3............................. 14 hour rule violation (Property) Hours....................... 7
(395.3A2R).
395.3............................. Driving beyond 14 hour duty Hours....................... 7
period (Property carrying
vehicle) (395.3A2-PROP).
395.3............................. Driving beyond 11 hour driving Hours....................... 7
limit in a 14 hour period.
(Property Carrying Vehicle)
(395.3A3-PROP).
395.3(a)(3)(ii)................... Driving beyond 8 hour limit since Hours....................... 7
the end of the last off duty or
sleeper period of at least 30
minutes.
395.3(b).......................... 60/70--hour rule violation....... Hours....................... 7
395.3(b)(1)....................... Driving after 60 hours on duty in Hours....................... 7
a 7 day period. (Property
carrying vehicle) (395.3B1-PROP).
395.3(b)(2)....................... Driving after 70 hours on duty in Hours....................... 7
a 8 day period. (Property
carrying vehicle)(395.3B2).
395.3(b).......................... 60/70--hour rule violation Hours....................... 7
(Property) (395.3BR).
395.3(c).......................... 34-hour restart violation Hours....................... 7
(Property).
395.5(a)(1)....................... 10-hour rule violation Hours....................... 7
(Passenger).
395.5(a)(1)....................... Driving after 10 hour driving Hours....................... 7
limit (Passenger carrying
vehicle) (395.5A1-PASS).
395.5(a)(2)....................... 15--hour rule violation Hours....................... 7
(Passenger).
395.5(a)(2)....................... Driving after 15 hours on duty Hours....................... 7
(Passenger carrying vehicle)
(395.5A2-PASS).
395.5(b).......................... 60/70--hour rule violation Hours....................... 7
(Passenger).
395.5(b)(1)....................... Driving after 60 hours on duty in Hours....................... 7
a 7 day period. (Passenger
carrying vehicle) (395.5B1-PASS).
395.5(b)(2)....................... Driving after 70 hours on duty in Hours....................... 7
a 8 day period. (Passenger
carrying vehicle) (395.5B2-PASS).
395.8............................. Driver's record of Duty Status Other Log/Form & Manner..... 1
(general/form and manner).
395.8(a).......................... No driver's record of duty status Incomplete/Wrong Log........ 5
395.8(e).......................... False report of driver's record False Log................... 7
of duty status.
395.8(f)(1)....................... Driver's record of duty status Incomplete/Wrong Log........ 5
not current.

[[Page 3619]]

395.8(k)(2)....................... Driver failing to retain previous Incomplete/Wrong Log........ 5
7 days' logs.
395.13(d)......................... Driving after being declared out- Jumping OOS/Driving Fatigued 10
of-service.
395.15(b)......................... Onboard recording device Incomplete/Wrong Log........ 5
information requirements not met.
395.15(c)......................... Onboard recording device improper Other Log/Form & Manner..... 1
form and manner.
395.15(f)......................... Onboard recording device failure Incomplete/Wrong Log........ 5
and driver failure to
reconstruct duty status.
395.15(g)......................... On-board recording device EOBR Related................ 1
information not available.
395.15(i)(5)...................... Onboard recording device does not Other Log/Form & Manner..... 1
display required information.
398.6............................. Violation of HOS regulations-- Hours....................... 7
migrant workers.
----------------------------------------------------------------------------------------------------------------

Table 3--Driver Fitness BASIC Violations
----------------------------------------------------------------------------------------------------------------
Violation description shown on
driver/vehicle examination report Violation
49 CFR Section given to CMV driver after Violation group description severity
inspection weight
----------------------------------------------------------------------------------------------------------------
177.816........................... Driver training requirements..... General Driver Qualification 4
383.21............................ Operating a CMV with more than License-related: High....... 8
one driver's license.
383.21(a)......................... Operating a CMV with more than License-related: High....... 8
one driver's license.
383.23(a)(2)...................... Operating a CMV without a CDL.... License-related: High....... 8
383.25(a)......................... Operating on learner's permit License-related: High....... 8
without CDL holder (383.23(c)).
383.25(a)(1)...................... Operating on learner's permit License-related: High....... 8
without CDL holder
(383.23(c)(1)).
383.25(a)(2)...................... Operating on learner's permit License-related: High....... 8
without valid driver's license
(383.23(c)(2)).
383.51(a)......................... Driving a CMV (CDL) while License-related: High....... 8
disqualified.
383.51(a)......................... Driving a CMV while CDL is License-related: Medium..... 5
suspended for a non-safety-
related reason and in the state
of driver's license issuance.
(383.51A-NSIN).
383.51(a)......................... Driving a CMV while CDL is License-related: Low........ 1
suspended for a non-safety-
related reason and outside the
state of driver's license
issuance (383.51A-NSOUT).
383.51(a)A........................ Driving a CMV while CDL is License-related: High....... 8
suspended for a safety-related
or unknown reason and in the
state of driver's license
issuance. (383.51A-SIN).
383.51(a)......................... Driving a CMV while CDL is License-related: Medium..... 5
suspended for safety-related or
unknown reason and outside the
driver's license state of
issuance. (383.51A-SOUT).
383.91(a)......................... Operating a CMV with improper CDL License-related: High....... 8
group.
383.93(b)(1)...................... No double/triple trailer License-related: High....... 8
endorsement on CDL.
383.93(b)(2)...................... No passenger vehicle endorsement License-related: High....... 8
on CDL.
383.93(b)(3)...................... No tank vehicle endorsement on License-related: High....... 8
CDL.
383.93(b)(4)...................... No HM endorsement on CDL......... License-related: High....... 8
383.93(b)(5)...................... No school bus endorsement on CDL. License-related: High....... 8
383.93(b)(5)...................... License (CDL)--Operating a school License-related: High....... 8
bus without a school bus
endorsement as described in
383.93(b)(5) (383.93B5LCDL).
383.95(a)......................... Violating airbrake restriction... License-related: High....... 8
386.72(b)......................... Failing to comply with Imminent Fitness/Jumping OOS......... 10
Hazard OOS Order.
391.11............................ Unqualified driver............... License-related: High....... 8
391.11(b)(1)...................... Interstate driver under 21 years General Driver Qualification 4
of age.
391.11(b)(4)...................... Driver lacking physical Physical.................... 2
qualification(s).
391.11(b)(5)...................... Driver lacking valid license for License-related: High....... 8
type vehicle being operated.
391.11(b)(5)...................... Driver operating a CMV without License-related: High....... 8
proper endorsements or in
violation of restrictions.
(391.11B5-DEN).
391.11(b)(5)...................... Driver does not have a valid License-related: High....... 8
operator's license for the CMV
being operated. (391.11B5-DNL).
391.11(b)(7)...................... Driver disqualified from License-related: High....... 8
operating CMV.
391.15(a)......................... Driving a CMV while disqualified. License-related: High....... 8
391.15(a)......................... Driving a CMV while disqualified. License-related: Medium..... 5
Suspended for non-safety-related
reason and in the state of
driver's license issuance.
(391.15A-NSIN).
391.15(a)......................... Driving a CMV while disqualified. License-related: Low........ 1
Suspended for a non-safety-
related reason and outside the
state of driver's license
issuance (391.15A-NSOUT)..
391.15(a)......................... Driving a CMV while disqualified. License-related: High....... 8
Suspended for safety-related or
unknown reason and in the state
of driver's license issuance.
(391.15A-SIN).
391.15(a)......................... Driving a CMV while disqualified. License-related: Medium..... 5
Suspended for a safety-related
or unknown reason and outside
the driver's license state of
issuance. (391.15A-SOUT).
391.41(a)......................... Driver not in possession of Medical Certificate......... 1
medical certificate.
391.41(a)......................... Operating a property-carrying Medical Certificate......... 1
vehicle without possessing a
valid medical certificate
(391.41A-F)..

[[Page 3620]]

391.41(a)......................... Operating a property-carrying Medical Certificate......... 1
vehicle without possessing a
valid medical certificate.
Previously Cited (391.41A-FPC).
391.41(a)......................... Operating a passenger-carrying Medical Certificate......... 1
vehicle without possessing a
valid medical certificate.
(391.41A-P).
391.43(h)......................... Improper medical examiner's Medical Certificate......... 1
certificate form.
391.45(b)......................... Expired medical examiner's Medical Certificate......... 1
certificate.
391.49(j)......................... No valid medical waiver in Medical Certificate......... 1
driver's possession.
398.3(b).......................... Driver not physically qualified.. Physical.................... 2
398.3(b)(8)....................... No doctor's certificate in Medical Certificate......... 1
possession.
----------------------------------------------------------------------------------------------------------------

Table 4--Vehicle Maintenance BASIC Violations
----------------------------------------------------------------------------------------------------------------
Violation description shown on
driver/vehicle examination report Violation
49 CFR Section given to CMV driver after Violation group description severity
inspection weight
----------------------------------------------------------------------------------------------------------------
385.103(c)........................ Fail to display current CVSA Inspection Reports.......... 4
decal--Provisional Authority.
392.2............................. Wheel (Mud) Flaps missing or Windshield/Glass/Markings... 1
defective (392.2WC).
392.7............................. No pre-trip inspection........... Inspection Reports.......... 4
392.7(a).......................... Driver failing to conduct pre- Inspection Reports.......... 4
trip inspection.
392.7(b).......................... Driver failing to conduct a pre- Inspection Reports.......... 4
trip inspection of intermodal
equipment.
392.8............................. Failing to inspect/use emergency Emergency Equipment......... 2
equipment.
392.9............................. Failing to secure load........... General Securement.......... 1
392.9(a).......................... Failing to secure load........... General Securement.......... 1
392.9(a)(1)....................... Failing to secure cargo.......... General Securement.......... 1
392.9(a)(2)....................... Failing to secure vehicle General Securement.......... 1
equipment.
392.9(a)(3)....................... Driver's view/movement is General Securement.......... 1
obstructed.
392.22(b)......................... Failing/improper placement of Cab, Body, Frame............ 2
warning devices.
392.33............................ Operating CMV with lamps/ Lighting.................... 6
reflectors obscured.
392.62(c)(1)...................... Bus--baggage/freight restricts General Securement.......... 1
driver operation.
392.62(c)(2)...................... Bus--Exit(s) obstructed by General Securement.......... 1
baggage/freight.
392.62(c)(3)...................... Passengers not protected from General Securement.......... 1
falling baggage.
392.63............................ Pushing/towing a loaded bus...... Towing Loaded Bus........... 10
393.9............................. Inoperative required lamps....... Clearance Identification 2
Lamps/Other.
393.9............................. Inoperative head lamps (393.9H).. Lighting.................... 6
393.9............................. Inoperative tail lamp (393.9T)... Lighting.................... 6
393.9............................. Inoperative turn signal (393.9TS) Lighting.................... 6
393.9(a).......................... Inoperative required lamps....... Clearance Identification 2
Lamps/Other.
393.11............................ No/defective lighting devices/ Reflective Sheeting......... 3
reflective devices/projected.
393.11............................ Lower retroreflective sheeting/ Reflective Sheeting......... 3
reflex reflectors--Trailer
manufactured on or after 12/1/
1993 (393.11LR).
393.11............................ No retroreflective sheeting/ Reflective Sheeting......... 3
reflex reflectors--Trailer
manufactured on or after 12/1/
1993 (393.11N).
393.11............................ Retroreflective sheeting not Reflective Sheeting......... 3
affixed as required--Trailer
manufactured on or after 12/1/
1993 (393.11RT).
393.11............................ No side retroreflective sheeting/ Reflective Sheeting......... 3
reflex reflectors--Trailer
manufactured on or after 12/1/
1993 (393.11S).
393.11............................ No retro reflective sheeting or Reflective Sheeting......... 3
reflex reflectors on mud flaps--
Truck Tractor manufactured on or
after 7/1/1997 (393.11TL).
393.11............................ No retroreflective sheeting/ Reflective Sheeting......... 3
reflex reflectors--Truck Tractor
manufactured on or after 7/1/
1997 (393.11TT).
393.11............................ No upper body corners Reflective Sheeting......... 3
retroreflective sheeting/reflex
reflectors--Truck Tractor
manufactured on or after 7/1/
1997 (393.11TU).
393.11............................ No upper reflex reflectors Reflective Sheeting......... 3
retroreflective sheeting/reflex
reflectors--Trailer manufactured
on or after 12/1/1993 (393.11UR).
393.13(a)......................... Retroreflective tape not affixed Reflective Sheeting......... 3
as required for Trailers
manufactured after 12/1/1993.
393.13(b)......................... No retroreflective sheeting or Reflective Sheeting......... 3
reflex reflective material as
required for vehicles
manufactured on or after 12/1/
1993.
393.13(c)(1)...................... No side retroreflective sheeting Reflective Sheeting......... 3
or reflex reflective material as
required for vehicles
manufactured before 12/1/1993.
393.13(c)(2)...................... No lower rear retroreflective Reflective Sheeting......... 3
sheeting or reflex reflective
material as required for
vehicles manufactured before 12/
1/1993.
393.13(c)(3)...................... No upper rear retroreflective Reflective Sheeting......... 3
sheeting or reflex reflective
material as required for
vehicles manufactured before 12/
1/1993.
393.13(d)(1)...................... Improper side placement of Reflective Sheeting......... 3
retroreflective sheeting or
reflex reflective material as
required for vehicles
manufactured on or after 12/1/
1993.

[[Page 3621]]

393.13(d)(2)...................... Improper lower rear placement of Reflective Sheeting......... 3
retroreflective sheeting or
reflex reflective material
requirements for vehicles
manufactured before 12/1/1993.
393.13(d)(3)...................... Upper rear retroreflective Reflective Sheeting......... 3
sheeting or reflex reflective
material as required for
vehicles manufactured on or
after 12/1/1993.
393.17............................ No/defective lamp/reflector-tow- Lighting.................... 6
away operation.
393.17(a)......................... No/defective lamps-towing unit- Lighting.................... 6
tow-away operation.
393.17(b)......................... No/defective tow-away lamps on Lighting.................... 6
rear unit.
393.19............................ Inoperative/defective hazard Lighting.................... 6
warning lamp.
393.23............................ Required lamp not powered by Clearance Identification 2
vehicle electricity. Lamps/Other.
393.24(a)......................... Noncompliance with headlamp Lighting.................... 6
requirements.
393.24(b)......................... Noncompliant fog/driving lamps... Lighting.................... 6
393.24(b)......................... Noncompliant fog or driving lamps Lighting.................... 6
(393.24BR).
393.24(c)......................... Improper headlamp mounting....... Lighting.................... 6
393.24(d)......................... Improper head/auxiliary/fog lamp Lighting.................... 6
aiming.
393.25(a)......................... Improper lamp mounting........... Lighting.................... 6
393.25(b)......................... Lamps are not visible as required Lighting.................... 6
393.25(e)......................... Lamp not steady burning.......... Lighting.................... 6
393.25(f)......................... Stop lamp violations............. Lighting.................... 6
393.26............................ Requirements for reflectors...... Reflective Sheeting......... 3
393.28............................ Improper or no wiring protection Other Vehicle Defect........ 3
as required.
393.30............................ Improper battery installation.... Other Vehicle Defect........ 3
393.40............................ Inadequate brake system on a CMV. Brakes, All Others.......... 4
393.41............................ No or defective parking brake Brakes, All Others.......... 4
system on CMV.
393.42............................ No brakes as required............ Brakes, All Others.......... 4
393.42(a)......................... Brake--Missing required brake. Brakes, All Others.......... 4
(393.42A-BM).
393.42(a)......................... Brake--All wheels not equipped Brakes, All Others.......... 4
with brakes as required.
(393.42A-BMAW).
393.42(a)......................... Brake--Missing on a trailer Brakes, All Others.......... 4
steering axle. (393.42A-BM-TSA).
393.43............................ No/improper breakaway or Brakes, All Others.......... 4
emergency braking.
393.43(a)......................... No/improper tractor protection Brakes, All Others.......... 4
valve.
393.43(d)......................... No or defective automatic trailer Brakes, All Others.......... 4
brake.
393.44............................ No/defective bus front brake line Brakes, All Others.......... 4
protection.
393.45............................ Brake tubing and hose adequacy... Brakes, All Others.......... 4
393.45............................ Brake Tubing and Hose Adequacy-- Brakes, All Others.......... 4
Connections to Power Unit
(393.45PC).
393.45............................ Brake Tubing and Hose Adequacy Brakes, All Others.......... 4
Under Vehicle (393.45UV).
393.45(b)(2)...................... Failing to secure brake hose/ Brakes, All Others.......... 4
tubing against mechanical damage
(393.45(a)(4)).
393.45(b)(2)...................... Failing to secure brake hose/ Brakes, All Others.......... 4
tubing against mechanical damage.
393.45(b)(2)...................... Brake Hose or Tubing Chafing and/ Brakes, All Others.......... 4
or Kinking--Connection to Power
Unit (393.45B2PC).
393.45(b)(2)...................... Brake Hose or Tubing Chafing and/ Brakes, All Others.......... 4
or Kinking Under Vehicle
(393.45B2UV).
393.45(b)(3)...................... Failing to secure brake hose/ Brakes, All Others.......... 4
tubing against high temperatures.
393.45(d)......................... Brake connections with leaks/ Brakes, All Others.......... 4
constrictions.
393.45(d)......................... Brake Connections with Brakes, All Others.......... 4
Constrictions--Connection to
Power Unit (393.45DCPC).
393.45(d)......................... Brake Connections with Brakes, All Others.......... 4
Constrictions Under Vehicle
(393.45DCUV).
393.45(d)......................... Brake Connections with Leaks-- Brakes, All Others.......... 4
Connection to Power Unit
(393.45DLPC).
393.45(d)......................... Brake Connections with Leaks Brakes, All Others.......... 4
Under Vehicle (393.45DLUV).
393.47............................ Inadequate/contaminated brake Brakes, All Others.......... 4
linings.
393.47(a)......................... Inadequate brakes for safe Brakes, All Others.......... 4
stopping.
393.47(b)......................... Mismatched brake chambers on same Brakes, All Others.......... 4
axle.
393.47(c)......................... Mismatched slack adjuster Brakes, All Others.......... 4
effective length.
393.47(d)......................... Insufficient brake linings....... Brakes, All Others.......... 4
393.47(e)......................... Clamp/Roto-Chamber type brake(s) Brakes Out of Adjustment.... 4
out of adjustment.
393.47(f)......................... Wedge type brake(s) out of Brakes Out of Adjustment.... 4
adjustment.
393.47(g)......................... Insufficient drum/rotor thickness Brakes, All Others.......... 4
393.48(a)......................... Inoperative/defective brakes..... Brakes, All Others.......... 4
393.48(a)......................... Brakes--Hydraulic Brake Caliper Brakes, All Others.......... 4
movement exceeds 1/8'' (0.125'')
(3.175 mm) (393.48A-BCM).
393.48(a)......................... Brakes--Missing or Broken Brakes, All Others.......... 4
Components (393.48A-BMBC).
393.48(a)......................... Brakes--Rotor (disc) metal-to- Brakes, All Others.......... 4
metal contact (393.48A-BRMMC).
393.48(a)......................... Brakes--Severe rusting of brake Brakes, All Others.......... 4
rotor (disc) (393.48A-BSRFS).
393.48(b)(1)...................... Defective brake limiting device.. Brakes, All Others.......... 4
393.50............................ Inadequate reservoir for air/ Brakes, All Others.......... 4
vacuum brakes.
393.50(a)......................... Failing to have sufficient air/ Brakes, All Others.......... 4
vacuum reserve.

[[Page 3622]]

393.50(b)......................... Failing to equip vehicle--prevent Brakes, All Others.......... 4
reservoir air/vacuum leak.
393.50(c)......................... No means to ensure operable check Brakes, All Others.......... 4
valve.
393.50(d)......................... No or defective air reservoir Brakes, All Others.......... 4
drain valve.
393.51............................ No or defective brake warning Brakes, All Others.......... 4
device.
393.52(a)(1)...................... Insufficient braking force as Brakes, All Others.......... 4
percent of GVW or GCW.
393.53(a)......................... Automatic brake adjuster CMV Brakes, All Others.......... 4
manufactured on or after 10/20/
1993--hydraulic brake.
393.53(b)......................... Automatic brake adjuster CMV Brakes, All Others.......... 4
manufactured on or after 10/20/
1994--air brake.
393.53(c)......................... Brake adjustment indicator CMV Brakes, All Others.......... 4
manufactured on or after 10/20/
1994--external automatic
adjustment.
393.55(a)......................... ABS--all CMVs manufactured on or Brakes, All Others.......... 4
after 3/1/1999 with hydraulic
brakes.
393.55(b)......................... ABS--malfunction indicators for Brakes, All Others.......... 4
hydraulic brake system.
393.55(c)(1)...................... ABS--all tractors manufactured on Brakes, All Others.......... 4
or after 3/1/1997 air brake
system.
393.55(c)(2)...................... ABS--all other CMVs manufactured Brakes, All Others.......... 4
on or after 3/1/1998 air brake
system.
393.55(d)(1)...................... ABS--malfunctioning circuit/ Brakes, All Others.......... 4
signal--truck tractor
manufactured on or after 3/1/
1997, single-unit CMV
manufactured on or after 3/1/
1998.
393.55(d)(2)...................... ABS--malfunctioning indicator to Brakes, All Others.......... 4
cab of towing CMV manufactured
on or after 3/1/2001.
393.55(d)(3)...................... No or Defective ABS Malfunction Brakes, All Others.......... 4
Indicator for towed vehicles on
vehicles manufactured after
February 2001.
393.55(e)......................... ABS--malfunctioning lamps towed Brakes, All Others.......... 4
CMV manufactured on or after 3/1/
1998.
393.60............................ Windshield--Obstructed Windshield/Glass/Markings... 1
(393.60EWS).
393.60(b)......................... Windshields required............. Windshield/Glass/Markings... 1
393.60(c)......................... Damaged or discolored windshield. Windshield/Glass/Markings... 1
393.60(d)......................... Glazing permits less than 70 Windshield/Glass/Markings... 1
percent of light.
393.61............................ Inadequate or missing truck side Windshield/Glass/Markings... 1
windows.
393.61............................ Inadequate or missing truck side Windshield/Glass/Markings... 1
windows (393.61(a)).
393.62(a)......................... No or defective bus emergency Windshield/Glass/Markings... 1
exits--Bus manufactured on or
after 9/1/1994.
393.62(b)......................... No or defective bus emergency Windshield/Glass/Markings... 1
exits--Bus manufactured on or
after 9/1/1973 but before 9/1/
1994.
393.62(c)......................... No or defective bus emergency Windshield/Glass/Markings... 1
exit windows--Bus manufactured
before 9/1/1973.
393.62(d)......................... No/defective Safety glass/push- Windshield/Glass/Markings... 1
out window--Bus manufactured
before 9/1/1973.
393.62(e)......................... No or inadequate bus emergency Windshield/Glass/Markings... 1
exit marking--Bus manufactured
on or after 9/1/1973.
393.65............................ Fuel system requirements......... Fuel Systems................ 1
393.65(b)......................... Improper location of fuel system. Fuel Systems................ 1
393.65(c)......................... Improper securement of fuel tank. Fuel Systems................ 1
393.65(f)......................... Improper fuel line protection.... Fuel Systems................ 1
393.67............................ Fuel tank requirement violations. Fuel Systems................ 1
393.67(c)(7)...................... Fuel tank fill pipe cap missing.. Fuel Systems................ 1
393.67(c)(8)...................... Improper fuel tank safety vent... Fuel Systems................ 1
393.68............................ Compressed natural gas (CNG) fuel Other Vehicle Defect........ 3
container does not conform to
regulations.
393.70............................ Fifth wheel...................... Coupling Devices............ 3
393.70(a)......................... Defective coupling device-- Coupling Devices............ 3
improper tracking.
393.70(b)......................... Defective/improper fifth wheel Coupling Devices............ 3
assemblies.
393.70(b)......................... Defective/improper fifth wheel Coupling Devices............ 3
assembly upper half (393.70B1II).
393.70(b)(2)...................... Defective fifth wheel locking Coupling Devices............ 3
mechanism.
393.70(c)......................... Defective coupling devices for Coupling Devices............ 3
full trailer.
393.70(d)......................... No/improper safety chains/cables Coupling Devices............ 3
for full trailer.
393.70(d)(8)...................... Improper safety chain attachment. Coupling Devices............ 3
393.71............................ Improper coupling driveaway/tow- Coupling Devices............ 3
away operation.
393.71(g)......................... Prohibited towing connection/ Coupling Devices............ 3
device.
393.71(h)......................... Towbar requirement violations.... Coupling Devices............ 3
393.71(h)(10)..................... No/improper safety chains/cables Coupling Devices............ 3
for towbar.
393.75............................ Tires/tubes (general)............ Tires....................... 8
393.75(a)......................... Flat tire or fabric exposed...... Tires....................... 8
393.75(a)(1)...................... Tire--ply or belt material Tires....................... 8
exposed.
393.75(a)(2)...................... Tire--tread and/or sidewall Tires....................... 8
separation.
393.75(a)(3)...................... Tire--flat and/or audible air Tires....................... 8
leak.
393.75(a)(4)...................... Tire--cut exposing ply and/or Tires....................... 8
belt material.
393.75(b)......................... Tire--front tread depth less than Tires....................... 8
\4/32\ of inch.
393.75(c)......................... Tire--other tread depth less than Tires....................... 8
\2/32\ of inch.

[[Page 3623]]

393.75(d)......................... Tire--bus regrooved/recap on Tires....................... 8
front wheel.
393.75(e)......................... Tire--regrooved on front wheel of Tire vs. Load............... 3
truck/truck-tractor.
393.75(f)......................... Tire--exceeding weight rating of Tire vs. Load............... 3
tire.
393.75(f)......................... Weight carried exceeds tire load Tire vs. Load............... 3
limit (393.75(f)(1)).
393.75(h)(1)...................... Tire underinflated (393.75(f)(2)) Tire vs. Load............... 3
393.75(h)......................... Tire underinflated............... Tire vs. Load............... 3
393.76............................ Sleeper berth requirement Other Vehicle Defect........ 3
violations.
393.77............................ Defective and/or prohibited Other Vehicle Defect........ 3
heaters.
393.77(b)(11)..................... Bus heater fuel tank location.... Other Vehicle Defect........ 3
393.77(b)(5)...................... Protection of operating controls Other Vehicle Defect........ 3
from tampering.
393.78............................ Windshield wipers inoperative/ Windshield/Glass/Markings... 1
defective.
393.79............................ Defroster/Defogger inoperative... Windshield/Glass/Markings... 1
393.80............................ Failing to equip vehicle with two Other Vehicle Defect........ 3
rear vision mirrors.
393.81............................ Horn inoperative................. Other Vehicle Defect........ 3
393.82............................ Speedometer inoperative/ Other Vehicle Defect........ 3
inadequate.
393.83(a)......................... Exhaust system location.......... Exhaust Discharge........... 1
393.83(b)......................... Exhaust discharge fuel tank/ Exhaust Discharge........... 1
filler tube.
393.83(c)......................... Improper exhaust--bus (gasoline). Exhaust Discharge........... 1
393.83(d)......................... Improper exhaust--bus (diesel)... Exhaust Discharge........... 1
393.83(e)......................... Improper exhaust discharge (not Exhaust Discharge........... 1
rear of cab).
393.83(f)......................... Improper exhaust system repair Exhaust Discharge........... 1
(patch/wrap).
393.83(g)......................... Exhaust leak under truck cab and/ Exhaust Discharge........... 1
or sleeper.
393.83(h)......................... Exhaust system not securely Exhaust Discharge........... 1
fastened.
393.84............................ Inadequate floor condition....... Cab, Body, Frame............ 2
393.86............................ No or improper rearend protection Cab, Body, Frame............ 2
393.86(a)(1)...................... Rear impact guards--all trailers/ Cab, Body, Frame............ 2
semitrailers manufactured on or
after 1/26/98.
393.86(a)(2)...................... Impact guard width--all trailers/ Cab, Body, Frame............ 2
semitrailers manufactured on or
after 1/26/98.
393.86(a)(3)...................... Impact guard height--all trailers/ Cab, Body, Frame............ 2
semitrailers manufactured on or
after 1/26/98.
393.86(a)(4)...................... Impact guard rear--all trailers/ Cab, Body, Frame............ 2
semitrailers manufactured on or
after 1/26/98.
393.86(a)(5)...................... Cross-sectional vertical height-- Cab, Body, Frame............ 2
all trailers/semitrailers
manufactured on or after 1/26/98.
393.86(b)(1)...................... Rear Impact Guards--motor Cab, Body, Frame............ 2
vehicles manufactured after 12/
31/52, see exceptions.
393.87............................ Warning flag required on Warning Flags............... 1
projecting load.
393.87(a)......................... Warning flag required on Warning Flags............... 1
projecting load.
393.87(b)......................... Improper warning flag placement.. Warning Flags............... 1
393.88............................ Improperly located television Cab, Body, Frame............ 2
receiver.
393.89............................ Bus driveshaft not properly Cab, Body, Frame............ 2
protected.
393.90............................ Bus--no or obscure standee line.. Cab, Body, Frame............ 2
393.91............................ Bus--improper aisle seats........ Cab, Body, Frame............ 2
393.93(a)......................... Bus--not equipped with seatbelt.. Cab, Body, Frame............ 2
393.93(a)(3)...................... Seats not secured in conformance Cab, Body, Frame............ 2
with FMVSS.
393.93(b)......................... Truck not equipped with seatbelt. Cab, Body, Frame............ 2
393.95(a)......................... No/discharged/unsecured fire Emergency Equipment......... 2
extinguisher.
393.95(a)(1)(i)................... No/discharged/unsecured fire Emergency Equipment......... 2
extinguisher.
393.95(b)......................... No spare fuses as required....... Emergency Equipment......... 2
393.95(b)......................... No spare fuses as required Emergency Equipment......... 2
(393.95(c)).
393.95(f)......................... No/insufficient warning devices.. Emergency Equipment......... 2
393.95(g)......................... HM--restricted emergency warning Emergency Equipment......... 2
device.
393.100........................... Failure to prevent cargo shifting General Securement.......... 1
393.100(a)........................ Failure to prevent cargo shifting General Securement.......... 1
393.100(b)........................ Leaking/spilling/blowing/falling Improper Load Securement.... 7
cargo.
393.100(c)........................ Failure to prevent cargo shifting General Securement.......... 1
393.102(a)........................ Improper securement system Tiedown..................... 3
(tiedown assemblies).
393.102(a)(1)..................... Insufficient means to prevent Failure to Prevent Movement. 3
movement.
393.102(a)(1)(i).................. Insufficient means to prevent Failure to Prevent Movement. 3
forward movement.
393.102(a)(1)(ii)................. Insufficient means to prevent Failure to Prevent Movement. 3
rearward movement.
393.102(a)(1)(iii)................ Insufficient means to prevent Failure to Prevent Movement. 3
lateral movement.
393.102(a)(2)..................... Tiedown assembly with inadequate Tiedown..................... 3
working load limit.
393.102(b)........................ Insufficient means to prevent Failure to Prevent Movement. 3
vertical movement.
393.102(c)........................ No equivalent means of securement Improper Load Securement.... 7
393.104(a)........................ Inadequate/damaged securement Securement Device........... 1
device/system.
393.104(b)........................ Damaged securement system/ Securement Device........... 1
tiedowns.
393.104(c)........................ Damaged vehicle structures/anchor Securement Device........... 1
points.
393.104(d)........................ Damaged dunnage/bars/blocking- Securement Device........... 1
bracing.
393.104(f)(1)..................... Knotted tiedown.................. Tiedown..................... 3

[[Page 3624]]

393.104(f)(2)..................... Use of tiedown with improper Tiedown..................... 3
repair..
393.104(f)(3)..................... Loose/unfastened tiedown......... Tiedown..................... 3
393.104(f)(4)..................... No edge protection for tiedowns.. Tiedown..................... 3
(393.104F4R).....................
393.106(a)........................ No/improper front end structure/ Securement Device........... 1
headerboard.
393.106(b)........................ Cargo not immobilized or secured. Failure to Prevent Movement. 3
393.106(c)(1)..................... No means to prevent cargo from Failure to Prevent Movement. 3
rolling.
393.106(c)(2)..................... Cargo without direct contact/ Failure to Prevent Movement. 3
prevention from shifting.
393.106(d)........................ Insufficient aggregate working Tiedown..................... 3
load limit.
393.110........................... Failing to meet minimum tiedown General Securement.......... 1
requirements.
393.110(b)........................ Insufficient tiedowns; without Tiedown..................... 3
headerboard/blocking.
393.110(c)........................ Insufficient tiedowns; with Tiedown..................... 3
headerboard/blocking.
393.110(d)........................ Large/odd-shaped cargo not Failure to Prevent Movement. 3
adequately secured.
393.112........................... Tiedown not adjustable by driver. Securement Device........... 1
393.114........................... No/improper front end structure.. General Securement.......... 1
393.114(b)(1)..................... Insufficient height for front-end Securement Device........... 1
structure.
393.114(b)(2)..................... Insufficient width for front-end Securement Device........... 1
structure.
393.114(d)........................ Front-end structure with large Securement Device........... 1
opening(s).
393.116........................... No/improper securement of logs... General Securement.......... 1
393.116(d)(1)..................... Short, over \1/3\ length past Improper Load Securement.... 7
structure.
393.116(d)(2)..................... Short, insufficient/no tiedowns.. Improper Load Securement.... 7
393.116(d)(3)..................... Short, tiedowns improperly Improper Load Securement.... 7
positioned.
393.116(d)(4)..................... Short, no center stakes/high log Improper Load Securement.... 7
not secured.
393.116(e)........................ Short, length; improper Improper Load Securement.... 7
securement.
393.118........................... No/improper lumber/building General Securement.......... 1
materials. securement.
393.118(b)........................ Improper placement of bundles.... Improper Load Securement.... 7
393.118(d)........................ Insufficient protection against Failure to Prevent Movement. 3
lateral movement.
393.118(d)(3)..................... Insufficient/improper arrangement Tiedown..................... 3
of tiedowns.
393.120........................... No/improper securement of metal General Securement.......... 1
coils.
393.120(b)(1)..................... Coil/vertical improper securement Improper Load Securement.... 7
393.120(b)(2)..................... Coils, rows, eyes vertical-- Improper Load Securement.... 7
improper securement.
393.120(c)(1)..................... Coil/eye crosswise improper Improper Load Securement.... 7
securement.
393.120(c)(2)..................... X-pattern on coil(s) with eyes Improper Load Securement.... 7
crosswise.
393.120(d)(1)..................... Coil with eye lengthwise-improper Improper Load Securement.... 7
securement.
393.120(d)(4)..................... Coils, rows, eyes length-- Improper Load Securement.... 7
improper securement..
393.120(e)........................ No protection against shifting/ Failure to Prevent Movement. 3
tipping.
393.122........................... No/improper securement of paper General Securement.......... 1
rolls.
393.122(b)........................ Rolls vertical--improper Improper Load Securement.... 7
securement.
393.122(c)........................ Rolls vertical/split--improper Improper Load Securement.... 7
securement.
393.122(d)........................ Rolls vertical/stacked--improper Improper Load Securement.... 7
securement.
393.122(e)........................ Rolls crosswise--improper Improper Load Securement.... 7
securement.
393.122(f)........................ Rolls crosswise/stacked load-- Improper Load Securement.... 7
improperly secured.
393.122(g)........................ Rolls length--improper securement Improper Load Securement.... 7
393.122(h)........................ Rolls lengthwise/stacked-- Improper Load Securement.... 7
improper securement.
393.122(i)........................ Improper securement--rolls on Improper Load Securement.... 7
flatbed/curtain-sided vehicle.
393.124........................... No/improper securement of General Securement.......... 1
concrete pipe.
393.124(b)........................ Insufficient working load limit-- Tiedown..................... 3
concrete pipes.
393.124(c)........................ Improper blocking of concrete Improper Load Securement.... 7
pipe.
393.124(d)........................ Improper arrangement of concrete Improper Load Securement.... 7
pipe.
393.124(e)........................ Improper securement, up to 45 in. Improper Load Securement.... 7
diameter.
393.124(f)........................ Improper securement, greater than Improper Load Securement.... 7
45 inch diameter.
393.126........................... Fail to ensure intermodal General Securement.......... 1
container secured.
393.126(b)........................ Damaged/missing tiedown/ Securement Device........... 1
securement device.
393.126(c)(1)..................... Lower corners of container not on Securement Device........... 1
vehicle/structure.
393.126(c)(2)..................... All corners of chassis not Improper Load Securement.... 7
secured.
393.126(c)(3)..................... Front and rear of container not Improper Load Securement.... 7
secured independently.
393.126(d)(1)..................... Empty container not properly Improper Load Securement.... 7
positioned.
393.126(d)(2)..................... Empty container, more than 5 foot Improper Load Securement.... 7
overhang.
393.126(d)(4)..................... Empty container--not properly Improper Load Securement.... 7
secured.
393.128........................... No/improper securement of General Securement.......... 1
vehicles.
393.128(b)(1)..................... Vehicle not secured--front and Improper Load Securement.... 7
rear.
393.128(b)(2)..................... Tiedown(s) not affixed to Improper Load Securement.... 7
mounting points.
393.128(b)(3)..................... Tiedown(s) not over/around wheels Improper Load Securement.... 7
393.130........................... No/improper heavy vehicle/ General Securement.......... 1
machinery securement.
393.130(b)........................ Item not properly prepared for Improper Load Securement.... 7
transport.
393.130(c)........................ Improper restraint/securement of Improper Load Securement.... 7
item.
393.132........................... No/improper securement of crushed General Securement.......... 1
vehicles.
393.132(b)........................ Prohibited use of synthetic Securement Device........... 1
webbing.
393.132(c)........................ Insufficient tiedowns per stack Tiedown..................... 3
cars.
393.132(c)(5)..................... Insufficient means to retain Improper Load Securement.... 7
loose parts.

[[Page 3625]]

393.134........................... No/improper securement of roll/ General Securement.......... 1
hook container.
393.134(b)(1)..................... No blocking against forward Failure to Prevent Movement. 3
movement.
393.134(b)(2)..................... Container not secured to front of Improper Load Securement.... 7
vehicle.
393.134(b)(3)..................... Rear of container not properly Improper Load Securement.... 7
secured.
393.136........................... No/improper securement of large General Securement.......... 1
boulders.
393.136(b)........................ Improper placement/positioning of Improper Load Securement.... 7
boulder.
393.136(c)(1)..................... Boulder not secured with chain... Improper Load Securement.... 7
393.136(d)........................ Improper securement--cubic Improper Load Securement.... 7
boulder.
393.136(e)........................ Improper securement--non-cubic Improper Load Securement.... 7
boulder with stable base.
393.136(f)........................ Improper securement--non-cubic Improper Load Securement.... 7
boulder with unstable base.
393.201(a)........................ Frame cracked/loose/sagging/ Cab, Body, Frame............ 2
broken.
393.201(b)........................ Bolts securing cab broken/loose/ Cab, Body, Frame............ 2
missing.
393.201(c)........................ Frame rail flange improperly bent/ Cab, Body, Frame............ 2
cut/notched.
393.201(d)........................ Frame accessories improperly Cab, Body, Frame............ 2
attached.
393.201(e)........................ Prohibited holes drilled in frame Cab, Body, Frame............ 2
rail flange.
393.203........................... Cab/body parts requirements Cab, Body, Frame............ 2
violations.
393.203(a)........................ Cab door missing/broken.......... Cab, Body, Frame............ 2
393.203(b)........................ Cab/body improperly secured to Cab, Body, Frame............ 2
frame.
393.203(c)........................ Hood not securely fastened....... Cab, Body, Frame............ 2
393.203(d)........................ Cab seats not securely mounted... Cab, Body, Frame............ 2
393.203(e)........................ Cab front bumper missing/ Cab, Body, Frame............ 2
unsecured/protruding.
393.205(a)........................ Wheel/rim cracked or broken...... Wheels, Studs, Clamps, Etc.. 2
393.205(b)........................ Stud/bolt holes elongated on Wheels, Studs, Clamps, Etc.. 2
wheels.
393.205(c)........................ Wheel fasteners loose and/or Wheels, Studs, Clamps, Etc.. 2
missing.
393.207(a)........................ Axle positioning parts defective/ Suspension.................. 7
missing.
393.207(b)........................ Adjustable axle locking pin Suspension.................. 7
missing/disengaged.
393.207(c)........................ Leaf spring assembly defective/ Suspension.................. 7
missing.
393.207(d)........................ Coil spring cracked and/or broken Suspension.................. 7
393.207(e)........................ Torsion bar cracked and/or broken Suspension.................. 7
393.207(f)........................ Air suspension pressure loss..... Suspension.................. 7
393.207(g)........................ No/defective air suspension Suspension.................. 7
exhaust control.
393.209(a)........................ Steering wheel not secured/broken Steering Mechanism.......... 6
393.209(b)........................ Excessive steering wheel lash.... Steering Mechanism.......... 6
393.209(c)........................ Loose steering column............ Steering Mechanism.......... 6
393.209(d)........................ Steering system components worn/ Steering Mechanism.......... 6
welded/missing.
393.209(e)........................ Power steering violations........ Steering Mechanism.......... 6
396.1............................. Must have knowledge of and comply Inspection Reports.......... 4
with regulations.
396.3(a)(1)....................... Inspection/repair and maintenance Wheels, Studs, Clamps, Etc.. 2
parts and accessories.
396.3(a)(1)....................... Brakes (general) (396.3A1B)...... Brakes, All Others.......... 4
396.3(a)(1)....................... Brake out of adjustment Brakes Out of Adjustment.... 4
(396.3A1BA).
396.3(a)(1)....................... Brake-air compressor violation Brakes, All Others.......... 4
(396.3A1BC).
396.3(a)(1)....................... Brake-defective brake drum Brakes, All Others.......... 4
(396.3A1BD).
396.3(a)(1)....................... Brake-reserve system pressure Brakes, All Others.......... 4
loss (396.3A1BL).
396.3(a)(1)....................... Tires (general) (396.3A1T)....... Tires....................... 8
396.5............................. Excessive oil leaks.............. Other Vehicle Defect........ 3
396.5(a).......................... Failing to ensure that vehicle is Other Vehicle Defect........ 3
properly lubricated.
396.5(a).......................... Hubs--No visible or measurable Wheels, Studs, Clamps, Etc.. 2
lubricant showing in the hub--
inner wheel (396.5A-HNLIW).
396.5(a).......................... Hubs--No visible or measurable Wheels, Studs, Clamps, Etc.. 2
lubricant showing in the hub--
outer wheel (396.5A-HNLOW).
396.5(b).......................... Oil and/or grease leak........... Other Vehicle Defect........ 3
396.5(b).......................... Hubs--Oil and/or Grease Leaking Wheels, Studs, Clamps, Etc.. 2
from hub--inner wheel (396.5B-
HLIW).
396.5(b).......................... Hubs--oil and/or Grease Leaking Wheels, Studs, Clamps, Etc.. 2
from hub--outer wheel (396.5B-
HLOW).
396.5(b).......................... Hubs--Wheel seal leaking--inner Wheels, Studs, Clamps, Etc.. 2
wheel (396.5B-HWSLIW).
396.5(b).......................... Hubs--Wheel seal leaking--outer Wheels, Studs, Clamps, Etc.. 2
wheel (396.5B-HWSLOW).
396.7............................. Unsafe operations forbidden...... Other Vehicle Defect........ 3
396.9(c)(2)....................... Operating an OOS vehicle......... Vehicle Jumping OOS......... 10
396.9(d)(2)....................... Failure to correct defects noted Inspection Reports.......... 4
on inspection report.
396.11............................ No or inadequate driver vehicle Inspection Reports.......... 4
inspection report.
396.13(c)......................... No reviewing driver's signature Inspection Reports.......... 4
on Driver Vehicle Inspection
Report (DVIR).
396.17(c)......................... Operating a CMV without periodic Inspection Reports.......... 4
inspection.
398.5(a).......................... Operating a motor vehicle not in Other Vehicle Defect........ 3
compliance with parts and
accessories regulations--migrant
workers (398.5).
398.7............................. Failure to inspect or maintain Inspection Reports.......... 4
motor vehicle to ensure safe and
proper operating condition--
migrant workers.
399.207........................... Vehicle access requirements Cab, Body, Frame............ 2
violations.
399.211........................... Inadequate maintenance of driver Cab, Body, Frame............ 2
access.
----------------------------------------------------------------------------------------------------------------

[[Page 3626]]

Table 5--Hazardous Materials Compliance BASIC Violations
----------------------------------------------------------------------------------------------------------------
Violation description shown on
driver/vehicle examination report Violation
49 CFR section given to CMV driver after Violation group description severity
inspection weight
----------------------------------------------------------------------------------------------------------------
171.2(a).......................... Failure to comply with HM HM Other.................... 2
regulations.
171.2(b).......................... Failure to comply with the HM Other.................... 2
requirements for HM
transportation (including
labeling and handling).
171.2(c).......................... Representing a package./container Markings--HM................ 5
for HM not meeting specs.
171.2(f).......................... Transporting HM not in accordance Package Integrity--HM....... 8
with this part.
171.2(g).......................... Cargo tank does not comply with Package Integrity--HM....... 8
HM Regulations.
171.2(k).......................... Representing vehicle with HM, Markings--HM................ 5
none present.
172.200(a)........................ No shipping paper provided by Documentation--HM........... 3
offeror.
172.201(a)(1)..................... HM not distinguished from non-HM. Documentation--HM........... 3
172.201(a)(2)..................... HM description not printed Documentation--HM........... 3
legibly in English.
172.201(a)(3)..................... HM description contains Documentation--HM........... 3
abbreviation or code.
172.201(a)(4)..................... Additional information not after Documentation--HM........... 3
HM basic description.
172.201(c)........................ Failure to list page number of Documentation--HM........... 3
pages.
172.201(d)........................ Emergency Response phone number Documentation--HM........... 3
not listed.
172.202(a)(2)..................... Improper shipping name Documentation--HM........... 3
(172.202(a)(1)).
172.202(a)(3)..................... Improper hazard class Documentation--HM........... 3
(172.202(a)(2)).
172.202(a)(1)..................... Wrong or no ID number Documentation--HM........... 3
(172.202(a)(3).
172.202(a)(4)..................... No packing group listed.......... Documentation--HM........... 3
172.202(a)(5)..................... Total quantity not listed........ Documentation--HM........... 3
172.202(b)........................ Basic description not in proper Documentation--HM........... 3
sequence.
172.202(c)........................ Total quantity improper location. Documentation--HM........... 3
172.202(e)........................ Non Hazardous Material entered Documentation--HM........... 3
with class or ID#.
172.203(a)........................ Exemption number not listed...... Documentation--HM........... 3
172.203(b)........................ Limited quantity not shown....... Documentation--HM........... 3
172.203(c)(1)..................... Hazardous substance entry missing Documentation--HM........... 3
172.203(c)(2)..................... RQ not on shipping paper......... Documentation--HM........... 3
172.203(d)(1)..................... Radionuclide name not on shipping Documentation--HM........... 3
paper.
172.203(d)(10).................... No indication for Highway Route Documentation--HM........... 3
Controlled Quantity of Class 7
``HRCQ'' on shipping paper.
172.203(d)(2)..................... No RAM physical or chemical form. Documentation--HM........... 3
172.203(d)(3)..................... No RAM activity.................. Documentation--HM........... 3
172.203(d)(4)..................... No RAM label category............ Documentation--HM........... 3
172.203(d)(5)..................... No RAM transport index........... Documentation--HM........... 3
172.203(d)(6)..................... No fissile radioactive entry..... Documentation--HM........... 3
172.203(d)(7)..................... No DOE/NRC package approval Documentation--HM........... 3
notation.
172.203(d)(8)..................... Export package or foreign made Documentation--HM........... 3
package not marked with IAEA
Certificate.
172.203(d)(9)..................... No Exclusive Use notation........ Documentation--HM........... 3
172.203(e)........................ No empty packaging noted......... Documentation--HM........... 3
172.203(h)(1)..................... No qt/nqt for anhydrous ammonia.. Documentation--HM........... 3
172.203(h)(2)..................... No notation for QT/NQT for Documentation--HM........... 3
Liquified Petroleum Gas.
172.203(k)........................ No technical name for nos entry.. Documentation--HM........... 3
172.203(m)........................ No Poison Inhalation Hazard and/ Documentation--HM........... 3
or Hazard Zone.
172.203(n)........................ No ``hot'' on shipping paper..... Documentation--HM........... 3
172.203(o)........................ No temperature controls noted for Documentation--HM........... 3
Class 4.1 or Class 5.2.
172.205........................... Hazardous waste manifest not as Documentation--HM........... 3
required.
172.300........................... Failing to comply with marking Markings--HM................ 5
requirements.
172.301........................... Non-bulk package marking--general Markings--HM................ 5
172.301(a)........................ No ID number on side/ends of non- Markings--HM................ 5
bulk package--large quantity of
single HM.
172.301(a)(1)..................... No proper shipping name and/or Markings--HM................ 5
ID# marking on non-bulk.
172.301(b)........................ No technical name on non-bulk.... Documentation--HM........... 3
172.301(c)........................ No special permit number on non- Documentation--HM........... 3
bulk package.
172.301(d)........................ No consignee/consignor on non- Documentation--HM........... 3
bulk.
172.302........................... Marking requirements bulk Markings--HM................ 5
packagings.
172.302(a)........................ No ID number (portable and cargo Markings--HM................ 5
tank).
172.302(b)........................ Bulk package marking incorrect Markings--HM................ 5
size.
172.302(c)........................ No special permit number on bulk Documentation--HM........... 3
package.
172.303(a)........................ Prohibited HM marking on package. Markings--HM................ 5
172.304(a)(1)..................... Package marking not durable, Markings--HM................ 5
English, or print.
172.304(a)(2)..................... Marking not on sharply Markings--HM................ 5
contrasting color.
172.304(a)(3)..................... Marking obscured by label or Markings--HM................ 5
attachments.
172.304(a)(4)..................... Marking not away from other Markings--HM................ 5
marking.
172.308(a)........................ Package marked with unauthorized Markings--HM................ 5
abbreviation.
172.310(a)........................ No gross weight on radioactive Markings--HM................ 5
materials package greater than
50 KG.
172.310(b)........................ Radioactive materials package not Markings--HM................ 5
marked ``Type A or B''.
172.312(a)(2)..................... No package orientation arrows.... Cargo Protection--HM........ 4
172.312(b)........................ Prohibited use of orientation Cargo Protection--HM........ 4
arrows.
172.313(a)........................ No ``inhalation hazard'' on Markings--HM................ 5
package.
172.313(b)........................ No ``poison'' on non-bulk plastic Markings--HM................ 5
package.

[[Page 3627]]

172.316(a)........................ Other regulated material non-bulk Markings--HM................ 5
package not marked.
172.320(a)........................ Class 1 package not marked with Markings--HM................ 5
ex-number.
172.322(b)........................ No marine pollutant marking on Markings--HM................ 5
bulk packaging.
172.324........................... Non-bulk hazardous substance not Markings--HM................ 5
marked.
172.325(a)........................ No ``hot'' marking for bulk Markings--HM................ 5
elevated temperature (172.325).
172.325(a)........................ Elevated temperature not marked Markings--HM................ 5
``Hot''.
172.325(b)........................ Improperly marked molten aluminum/ Markings--HM................ 5
sulphur.
172.326(a)........................ Portable tank not marked with Markings--HM................ 5
proper shipping name or ID#.
172.326(b)........................ No portable tank owner or lessee Markings--HM................ 5
marking.
172.326(c)(1)..................... No ID number marking on vehicle Markings--HM................ 5
carrying portable tank.
172.326(c)(2)..................... Shipper failed to provide ID Markings--HM................ 5
number to carrier.
172.328........................... No ID number displayed on a cargo Markings--HM................ 5
tank.
172.328(a)........................ Shipper failed to provide or Markings--HM................ 5
affix ID number for cargo tank.
172.328(b)........................ Cargo tank not marked for class 2 Markings--HM................ 5
172.328(c)........................ No quenched and tempered steel Markings--HM................ 5
(QT)/other than quenched and
tempered steel (NQT) marked on
cargo tank (MC 330/331).
172.328(d)........................ Fail to mark manual remote Markings--HM................ 5
shutoff device.
172.330(a)(2)..................... Tank car tank (non cylinder) not Markings--HM................ 5
marked as required.
172.330(b)........................ Motor vehicle with tank not Markings--HM................ 5
marked.
172.331........................... Markings for other bulk packages. Markings--HM................ 5
172.332........................... Required ID markings displayed... Markings--HM................ 5
172.334........................... Prohibited ID number marking..... Markings--HM................ 5
172.334(a)........................ ID # displayed on Class 7/Class 1/ Markings--HM................ 5
Dangerous or Subsidiary placard.
172.336(b)........................ ID numbers not properly displayed Markings--HM................ 5
172.336(c)(1)..................... Failing to display ID numbers on Markings--HM................ 5
compartment cargo tank in
sequence.
172.338........................... Carrier failed to replace missing Markings--HM................ 5
ID number.
172.400........................... Labeling requirements............ Markings--HM................ 5
172.400(a)........................ Package/containment not labeled Markings--HM................ 5
as required.
172.401........................... Prohibited labeling.............. Markings--HM................ 5
172.402........................... Failing to affix additional Markings--HM................ 5
labels when required.
172.402(a)........................ No label for subsidiary hazard... Markings--HM................ 5
172.402(b)........................ Display of class number on label. Markings--HM................ 5
172.402(d)........................ Subsidiary labeling for Markings--HM................ 5
radioactive materials.
172.402(e)........................ Subsidiary labeling for class 1 Markings--HM................ 5
(explosive) materials.
172.403(a)........................ Radioactive material label Markings--HM................ 5
requirement.
172.403(f)........................ Radioactive material package-2 Markings--HM................ 5
labels on opposite sides.
172.403(g)........................ Failed to label radioactive Markings--HM................ 5
material properly.
172.403(g)(2)..................... Class 7 label--no activity/ Markings--HM................ 5
activity not in SI units.
172.404(a)........................ Mixed package not properly Markings--HM................ 5
labeled.
172.404(b)........................ Failed to properly label Markings--HM................ 5
consolidated package.
172.406(a)(1)..................... Label placement not as required.. Markings--HM................ 5
172.406(c)........................ Multiple label placement not as Markings--HM................ 5
required.
172.406(d)........................ Label not on contrasting Markings--HM................ 5
background or no border.
172.406(e)........................ Failed to display duplicate label Markings--HM................ 5
as required.
172.406(f)........................ Label obscured by marking or Markings--HM................ 5
attachment.
172.502(a)(1)..................... Prohibited placarding............ Markings--HM................ 5
172.502(a)(2)..................... Sign or device could be confused Markings--HM................ 5
with HM placard.
172.504........................... Placards not in table 1 or 2..... Markings--HM................ 5
172.504(a)........................ Vehicle not placarded as required Markings--HM................ 5
172.504(b)........................ Dangerous placard violation...... Markings--HM................ 5
172.505(a)........................ No placard for poison inhalation Markings--HM................ 5
hazard.
172.505(b)........................ Not placarded for RAM and Markings--HM................ 5
Corrosive when required.
172.505(c)........................ Placard for subsidiary dangerous Markings--HM................ 5
when wet.
172.506(a)........................ Failed to provide placards Markings--HM................ 5
shipper.
172.506(a)(1)..................... Placards not affixed to vehicle.. Markings--HM................ 5
172.507........................... Not placardarded for RAM highway Markings--HM................ 5
route controlled quantity.
172.512(a)........................ Freight container not placarded.. Markings--HM................ 5
172.514(a)........................ Bulk package offered without Markings--HM................ 5
placard.
172.514(b)........................ Bulk package with residue of HM Markings--HM................ 5
not properly placarded.
172.516(a)........................ Placard not visible from Markings--HM................ 5
direction it faces.
172.516(c)(1)..................... Placard not securely affixed or Markings--HM................ 5
attached.
172.516(c)(2)..................... Placard not clear of appurtenance Markings--HM................ 5
172.516(c)(4)..................... Placard improper location........ Markings--HM................ 5
172.516(c)(5)..................... Placard not reading horizontally. Markings--HM................ 5
172.516(c)(6)..................... Placard damaged, deteriorated, or Markings--HM................ 5
obscured.
172.516(c)(7)..................... Placard not on contrasting Markings--HM................ 5
background or border.
172.519........................... Placard does not meet Markings--HM................ 5
specifications.
172.600(c)........................ Emergency Response (ER) Documentation--HM........... 3
information not available.
172.602(a)........................ Emergency response information Documentation--HM........... 3
missing.
172.602(b)........................ Form and manner of emergency Documentation--HM........... 3
response information.

[[Page 3628]]

172.602(c)(1)..................... Maintenance/accessibility of Documentation--HM........... 3
emergency response information.
172.604(a)........................ Failing to provide an emergency Documentation--HM........... 3
response phone number.
173.24(a)......................... Non-bulk package mixed contents Cargo Protection--HM........ 4
requirements.
173.24(b)......................... Failed to meet general package Load Securement--HM......... 10
requirements.
173.24(b)(1)...................... Release of HM from package....... Load Securement--HM......... 10
173.24(b)......................... Bulk package outage or filling Load Securement--HM......... 10
limit requirements.
173.24b(d)(2)..................... Exceed max weight of rating on Load Securement--HM......... 10
spec plate.
173.24(c)......................... Unauthorized packaging........... Load Securement--HM......... 10
173.24(f)(1)...................... Closures for packagings must not Load Securement--HM......... 10
be open or leaking.
173.25(a)......................... Failed to meet overpack Markings--HM................ 5
conditions.
173.25(c)......................... Failure to label and package Markings--HM................ 5
poison properly, when
transported with edible material.
173.29(a)......................... Empty package improper Cargo Protection--HM........ 4
transportation.
173.30............................ Loading/unloading transport Cargo Protection--HM........ 4
vehicles.
173.32(h)(3)...................... IM101/102 bottom outlets Fire Hazard--HM............. 6
prohibited.
173.32(h)(3)(i)................... IM101/102 bottom outlets Fire Hazard--HM............. 6
authorized.
173.33(a)......................... Cargo tank general requirements.. Cargo Protection--HM........ 4
173.33(b)......................... HM in cargo tank which had Cargo Protection--HM........ 4
dangerous reaction with cargo
tank.
173.33(c)(2)...................... Cargo tank not marked with design Cargo Protection--HM........ 4
or maximum allowable working
pressure (MAWP).
173.35(a)......................... Intermediate bulk container Package Integrity--HM....... 8
requirements.
173.35(d)......................... Liquid filled IBC with Ullage Load Securement--HM......... 10
over 98%.
173.35(f)(2)...................... Intermediate bulk container (IBC) Load Securement--HM......... 10
not secured to or within vehicle.
173.40............................ General packages requirements for HM Other.................... 2
poisons in cylinders.
173.54............................ Forbidden explosives, offering or Fire Hazard--HM............. 6
transporting.
173.60............................ General packaging requirements HM Other.................... 2
for explosives.
173.315(a)........................ Cargo or portable tank class 2 Load Securement--HM......... 10
exceeds maximum filling density.
173.315(j)(3)..................... Residential gas tank not secure Fire Hazard--HM............. 6
in transport.
173.318(b)(10).................... Fail to mark inlet, outlet, Package Integrity--HM....... 8
pressure relief device, or
pressure control valve of
cryogenic tanks.
173.318(g)........................ No or Improper One Way Travel Markings--HM................ 5
Time (OWTT) marking on cryogenic
cargo tank.
173.412........................... General Type A package failing to Package Integrity--HM....... 8
meet additional design
requirements.
173.421(a)........................ Transporting limited quantity- Cargo Protection--HM........ 4
radioactive material exceeds 0.5
millirem/hour.
173.427(a)(6)(iv)................. No instructions for exclusive use Cargo Protection--HM........ 4
packaging-low specific activity.
173.427(a)(6)(vi)................. Exclusive use low specific Markings--HM................ 5
activity (LSA) radioactive
material not marked
``Radioactive-LSA''.
173.427(a)(6)(iv)................. No instructions for exclusive use Cargo Protection--HM........ 4
packaging-low specific activity.
173.427(a)(vi).................... Exclusive use low specific Markings--HM................ 5
activity (LSA) radioactive
material not marked
``Radioactive-LSA''.
173.431........................... Exceeded activity limits Type A Load Securement--HM......... 10
or Type B package.
173.441(a)........................ Exceeding radiation level Cargo Protection--HM........ 4
limitations allowed for
transport.
173.441(b)........................ Exceeding radiation level allowed Load Securement--HM......... 10
for transport of RAM under
exclusive use provisions.
173.442(b)(1)..................... External temperature of package Cargo Protection--HM........ 4
exceeds 50 degrees Celsius (122
degrees F).
173.442(b)(2)..................... External temperature of package Cargo Protection--HM........ 4
exceeds 85 degrees Celsius (185
degrees F).
173.443(a)........................ Radioactive contamination exceeds Load Securement--HM......... 10
limits.
173.447........................... RAM transport storage violation.. Cargo Protection--HM........ 4
173.448........................... General RAM transport Cargo Protection--HM........ 4
requirements.
177.801........................... Accepting/transporting HM not HM Other.................... 2
prepared properly.
177.804........................... Failure to comply with FMCSR 49 HM Other.................... 2
CFR part 383 and 49 CFR parts
390 through 397.
177.817........................... Shipping papers required......... Documentation--HM........... 3
177.817(a)........................ No shipping papers (carrier)..... Documentation--HM........... 3
177.817(b)........................ Shipper certification missing Documentation--HM........... 3
(when required).
177.817(e)........................ Shipping paper accessibility..... Documentation--HM........... 3
177.823(a)........................ No placards/markings when Markings--HM................ 5
required.
177.834........................... Load securement of different HM Fire Hazard--HM............. 6
packages.
177.834(a)........................ Package not secure in vehicle.... Load Securement--HM......... 10
177.834(b)........................ Package not loaded according to Cargo Protection--HM........ 4
orientation marks.
177.834(c)........................ Smoking while loading or Fire Hazard--HM............. 6
unloading.
177.834(f)........................ Using a tool likely to cause Load Securement--HM......... 10
damage to the closure of any
package or container.
177.834(i)........................ Attendance of cargo tank--(load Cargo Protection--HM........ 4
or unload).
177.834(j)........................ Manholes and valves not closed or Cargo Protection--HM........ 4
leak free.
177.834(m)(1)..................... Securing specification 106a or Cargo Protection--HM........ 4
110a tanks.
177.834(n)........................ Improper loading-specification Fire Hazard--HM............. 6
56, 57, IM101, and IM102.

[[Page 3629]]

177.835........................... Improper transportation of Fire Hazard--HM............. 6
explosives (Class 1).
177.835(a)........................ Loading/Unloading Class 1 with Fire Hazard--HM............. 6
engine running.
177.835(c)........................ Transporting Class 1 in Fire Hazard--HM............. 6
combination vehicles.
177.835(j)........................ Transfer of Class 1 materials en Fire Hazard--HM............. 6
route.
177.837........................... Improper transporting of Class 3 Fire Hazard--HM............. 6
HM.
177.837(c)........................ Cargo tanks not properly bonded/ Cargo Protection--HM........ 4
grounded.
177.837(d)........................ Improper unloading of combustible Cargo Protection--HM........ 4
liquids.
177.838........................... Improper transport of class 4, 5 Fire Hazard--HM............. 6
or division 4.2.
177.839........................... Improper transportation of Class Cargo Protection--HM........ 4
8 HM.
177.840........................... Improper transportation of Class Fire Hazard--HM............. 6
2 HM.
177.840(g)........................ Discharge valve not closed in Cargo Protection--HM........ 4
transit class 2.
177.840(o)........................ Fail to test off-truck remote Cargo Protection--HM........ 4
shutoff device.
177.840(s)........................ Fail to possess remote shutoff Cargo Protection--HM........ 4
when unloading.
177.841........................... Improper transportation of Fire Hazard--HM............. 6
Division 6.1 or Division 2.3 HM.
177.841(e)........................ Poison label loaded with HM Other.................... 2
foodstuffs.
177.842(a)........................ Total transport index exceeds 50- HM Other.................... 2
non-exclusive use.
177.842(b)........................ Distance from package to person- HM Other.................... 2
radioactive material.
177.842(d)........................ Blocking and bracing of HM Other.................... 2
radioactive material packages.
177.848(d)........................ Prohibited load/transport/storage Fire Hazard--HM............. 6
combination.
177.848(f)........................ Class 1 load separation or HM Other.................... 2
segregation.
177.870(b)........................ Transporting unauthorized HM in a Load Securement--HM......... 10
passenger-carrying vehicle.
177.870(c)........................ Prohibited HM on passenger Load Securement--HM......... 10
carrying vehicle.
178.245-4\1\...................... DOT51 integrity and securement... Package Integrity--HM....... 8
178.245-5\1\...................... DOT51 valve protection........... Package Integrity--HM....... 8
178.245-6(a)\1\................... DOT51 name plate Markings--HM.... Package Integrity--HM....... 8
178.245-6(b)\1\................... Tank outlets not marked.......... Package Integrity--HM....... 8
178.251-4\1\...................... DOT 56/57 integrity and Package Integrity--HM....... 8
securement.
178.251-7(b)\1\................... DOT 56/57 spec Markings--HM...... Package Integrity--HM....... 8
178.255-14........................ DOT 60 ID plate.................. Package Integrity--HM....... 8
178.255-4......................... DOT 60 manhole................... Package Integrity--HM....... 8
178.255-7\1\...................... DOT 60 valve protection.......... Package Integrity--HM....... 8
178.270-1\1\...................... IM101/102 general design......... Package Integrity--HM....... 8
178.270-11(d)(1)\1\............... IM101/102 pressure relief........ Package Integrity--HM....... 8
178.270-14\1\..................... IM101/102 spec plate............. Package Integrity--HM....... 8
178.270-4\1\...................... Structural integrity............. Package Integrity--HM....... 8
178.270-6\1\...................... IM101/102 frames................. Package Integrity--HM....... 8
178.270-8\1\...................... IM101/102 valve protection....... Package Integrity--HM....... 8
178.270-9\1\...................... IM101/102 manholes............... Package Integrity--HM....... 8
178.336-1......................... Protecting of fittings MC330..... Package Integrity--HM....... 8
178.336-13........................ Anchoring of tank MC330.......... Package Integrity--HM....... 8
178.336-17........................ Metal ID plate marking MC330..... Package Integrity--HM....... 8
178.336-17(a)..................... Certification plate MC330........ Package Integrity--HM....... 8
178.336-9(a)...................... Safety relief devices MC330...... Package Integrity--HM....... 8
178.336-9(c)...................... Marking of inlets/outlets MC330.. Package Integrity--HM....... 8
178.337-10(a)..................... Protection of fittings MC331..... Package Integrity--HM....... 8
178.337-11(a)..................... Internal valve MC331 (178.337- Package Integrity--HM....... 8
11(a)(2)).
178.337-13........................ MC331 supports and anchoring..... Package Integrity--HM....... 8
178.337-17(a)..................... Metal ID plate missing MC331..... Package Integrity--HM....... 8
178.337-8(a)...................... Outlets general requirements Package Integrity--HM....... 8
MC331.
178.337-8(a)(2)................... Outlets MC331.................... Package Integrity--HM....... 8
178.337-8(a)(3)................... Internal or back flow valve MC331 Package Integrity--HM....... 8
178.337-8(a)(4)(i)................ Remote closure device greater Package Integrity--HM....... 8
than 3500 gallons MC331.
178.337-8(a)(4)(ii)............... Remote closure device less than Package Integrity--HM....... 8
3500 gallons MC331.
178.337-9......................... Pressure relief devices MC331.... Package Integrity--HM....... 8
178.337-9(c)...................... Marking inlets/outlets MC331..... Package Integrity--HM....... 8
178.338-10(a)..................... Protection of fittings MC338..... Package Integrity--HM....... 8
178.338-10(c)..................... Rear end protection MC338........ Package Integrity--HM....... 8
178.338-11(b)..................... Manual shutoff valve MC338....... Package Integrity--HM....... 8
178.338-12........................ Shear section MC338.............. Package Integrity--HM....... 8
178.338-13........................ Supports and anchoring MC338..... Package Integrity--HM....... 8
178.338-18(a)..................... Name plate/Specification plate Package Integrity--HM....... 8
missing MC338.
178.338-18(b)..................... Specification plate missing MC338 Package Integrity--HM....... 8
178.338-6......................... Manhole MC338.................... Package Integrity--HM....... 8
178.338-8......................... Pressure relief devices MC338.... Package Integrity--HM....... 8
178.340-10(b)\ 2\................. MC306/307/312 metal certification Package Integrity--HM....... 8
plate missing.
178.340-6\2\...................... MC306/307/312 supports and Package Integrity--HM....... 8
anchoring.
178.340-7(a)\2\................... MC306/307/312 ring stiffeners.... Package Integrity--HM....... 8
178.340-7(c)\2\................... MC306/307/312 double bulkhead Package Integrity--HM....... 8
drain.
178.340-7(d)(2)\2\................ MC306/307/312 ring stiffener Package Integrity--HM....... 8
drain hole.

[[Page 3630]]

178.340-8(a)\2\................... MC306/307/312 appurtenances Package Integrity--HM....... 8
attachment.
178.340-8(b)\2\................... MC306/307/312 rearend protection. Package Integrity--HM....... 8
178.340-8(c)\2\................... MC306/307/312 overturn protection Package Integrity--HM....... 8
178.340-8(d)\2\................... MC306/307/312 piping protection.. Package Integrity--HM....... 8
178.340-8(d)(1)\2\................ MC306/307/312 piping protection.. Package Integrity--HM....... 8
178.340-8(d)(2)\2\................ MC306/307/312 minimum road Package Integrity--HM....... 8
clearance.
178.341-3(a)\2\................... MC306 no manhole closure......... Package Integrity--HM....... 8
178.341-4\2\...................... MC306 venting.................... Package Integrity--HM....... 8
178.341-4(d)(1)\2\................ MC306 inadequate emergency Package Integrity--HM....... 8
venting.
178.341-4(d)(2)\2\................ MC306 pressure activated vents... Package Integrity--HM....... 8
178.341-4(d)(3)\2\................ MC306 no fusible venting......... Package Integrity--HM....... 8
178.341-5(a)\2\................... MC306 internal valves............ Package Integrity--HM....... 8
178.341-5(a)(1)\2\................ MC306 heat actuated safety....... Package Integrity--HM....... 8
178.341-5(a)(2)\2\................ MC306 remote control shutoff..... Package Integrity--HM....... 8
178.342-3\2\...................... MC307 manhole closure............ Package Integrity--HM....... 8
178.342-4\2\...................... MC307 venting.................... Package Integrity--HM....... 8
178.342-4(b)\2\................... Inadequate venting capacity...... Package Integrity--HM....... 8
178.342-5(a)\2\................... MC307 internal valve............. Package Integrity--HM....... 8
178.342-5(a)(1)\2\................ MC307 heat actuated safety....... Package Integrity--HM....... 8
178.342-5(a)(2)\2\................ MC307 remote control shutoff..... Package Integrity--HM....... 8
178.343-3\2\...................... Manhole closure MC312............ Package Integrity--HM....... 8
178.343-4\2\...................... Venting MC312 (show calculations) Package Integrity--HM....... 8
178.343-5(a)\2\................... MC312 top outlet and valve....... Package Integrity--HM....... 8
178.343-5(b)(1)\2\................ MC312 bottom valve/piping Package Integrity--HM....... 8
protection.
178.345-1......................... DOT406/407/412 pressure relief... Package Integrity--HM....... 8
178.345-11(b)..................... DOT406/407/412 tank valves....... Package Integrity--HM....... 8
178.345-11(b)(1).................. DOT406/407/412 remote control.... Package Integrity--HM....... 8
178.345-11(b)(1)(i)............... DOT406/407/412 remote control.... Package Integrity--HM....... 8
178.345-14(b)..................... DOT406/407/412 name plate........ Package Integrity--HM....... 8
178.345-14(c)..................... DOT406/407/412 specification Package Integrity--HM....... 8
plate.
178.345-1(i)(2)................... DOT 406, 407, 412 Obstructed Package Integrity--HM....... 8
double bulkhead drain/vent.
178.345-5(d)...................... DOT406/407/412 manhole securement Package Integrity--HM....... 8
178.345-5(e)...................... DOT406/407/412 manhole marking... Package Integrity--HM....... 8
178.345-6......................... DOT406/407/412 supports and Package Integrity--HM....... 8
anchoring.
178.345-7(d)(4)................... DOT406/407/412 ring stiffener Package Integrity--HM....... 8
drain.
178.345-8(a)...................... DOT406/407/412 accident Package Integrity--HM....... 8
protection.
178.345-8(a)(5)................... DOT406/407/412 minimum road Package Integrity--HM....... 8
clearance.
178.345-8(b)...................... DOT406/407/412 bottom damage Package Integrity--HM....... 8
protection.
178.345-8(c)...................... DOT406/407/412 rollover damage Package Integrity--HM....... 8
protection.
178.345-8(d)...................... DOT406/407/412 rear end Package Integrity--HM....... 8
protection.
178.703(a)........................ Intermediate bulk container (IBC) Package Integrity--HM....... 8
manufacturer Markings--HM.
178.703(b)........................ Intermediate bulk container Package Integrity--HM....... 8
additional Markings--HM.
178.704(e)........................ Intermediate bulk container Package Integrity--HM....... 8
bottom discharge valve
protection.
179.300-12........................ DOT106/110aw protection of Package Integrity--HM....... 8
fittings.
179.300-13........................ DOT106/110aw venting and valves.. Package Integrity--HM....... 8
179.300-15........................ DOT106/110aw safety relief Package Integrity--HM....... 8
devices.
179.300-18........................ DOT106/110aw stamping of tanks... Package Integrity--HM....... 8
180.205(c)........................ Periodic re-qualification of Package Testing--HM......... 7
cylinders.
180.213(d)........................ Re-qualification Markings--HM.... Package Testing--HM......... 7
180.352(b)........................ Intermediate bulk container Package Testing--HM......... 7
retest or inspection.
180.352(d)........................ IBC retest date marking.......... Package Testing--HM......... 7
180.352(f)........................ IBC retest date marking Package Testing--HM......... 7
(180.352(e)).
180.405(b)........................ Cargo tank specifications........ Package Testing--HM......... 7
180.405(j)........................ Certification withdrawal (failed Package Testing--HM......... 7
to remove/cover/obliterate spec
plate).
180.407(a)(1)..................... Cargo tank periodic test and Package Testing--HM......... 7
inspection.
180.407(c)........................ Failing to periodically test and Package Testing--HM......... 7
inspect cargo tank.
180.415(b)........................ Cargo tank test or inspection Package Testing--HM......... 7
Markings--HM.
180.605........................... Periodic testing of portable Package Testing--HM......... 7
tanks.
180.605(k)........................ Test date marking................ Package Testing--HM......... 7
385.403........................... No HM Safety Permit.............. Documentation--HM........... 3
397.1(a).......................... Driver/carrier must obey part 397 HM Other.................... 2
397.1(b).......................... Failing to require employees to HM Other.................... 2
know/obey part 397.
397.2............................. Must comply with rules in parts HM Other.................... 2
390-397-transporting HM.
397.5(a).......................... Unattended explosives 1.1/1.2/1.3 Fire Hazard--HM............. 6
397.5(c).......................... Unattended hazmat vehicle........ Cargo Protection--HM........ 4
397.7(a).......................... Improperly parked explosives Fire Hazard--HM............. 6
vehicle.
397.7(b).......................... Improperly parked HM vehicle..... Fire Hazard--HM............. 6
397.11(a)......................... HM vehicle operated near open Fire Hazard--HM............. 6
fire.
397.11(b)......................... HM vehicle parked within 300 feet Fire Hazard--HM............. 6
of fire.

[[Page 3631]]

397.15............................ HM vehicle fueling violation..... Fire Hazard--HM............. 6
397.17............................ No tire examination on HM vehicle HM Other.................... 2
397.19............................ No instructions/documents when Documentation--HM........... 3
transporting Division 1.1/1.2/
1.3 (explosive) materials.
397.19(c)......................... Required documents not in Documentation--HM........... 3
possession-explosive materials.
397.67............................ HM vehicle routing violation (non- HM Route.................... 1
radioactive materials).
397.101(b)........................ Radioactive materials vehicle not HM Route.................... 1
on preferred route.
397.101(d)........................ No or incomplete route plan- HM Route.................... 1
radioactive materials.
397.101(e)(2)..................... Driver not in possession of HM Route.................... 1
training certificate.
397.101(e)(3)..................... Driver not in possession of HM Route.................... 1
written route plan.
----------------------------------------------------------------------------------------------------------------
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).

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

0
50. The authority citation for part 386 continues to read as follows:

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.

0
51. Amend appendix B to part 386 by revising paragraph (f) and adding
paragraph (j) to read as follows:

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 171.15..................... Carrier failing to give immediate
telephone notice of an incident
involving HM.
49 CFR 171.16..................... Carrier 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.

[[Page 3632]]

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 Sec.
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 Sec. 180.407.
49 CFR 180.415.................... Failing to mark a cargo tank which
passed an inspection or test
required by Sec. 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 382.201.................... Using a driver known to have an
alcohol concentration of 0.04 or
greater.
49 CFR 382.211.................... Using 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 382.215.................... Using 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 382.305.................... Failing 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 382.309.................... Using a driver without a return to
duty test.
49 CFR 382.503.................... Allowing 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 Sec.
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 382.605.................... Failing 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 390.35..................... Making, 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.

[[Page 3633]]

49 CFR 391.51(b)(7)............... Failing to maintain medical
examiner's certificate in driver's
qualification file.
49 CFR 392.2...................... Operating 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 392.6...................... Scheduling 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.

[[Page 3634]]

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 Sec.
173.403, of radioactive materials
that is not accompanied by a
written route plan.
------------------------------------------------------------------------

PART 387--MINIMUM LEVELS OF FINANCIAL RESPONSIBILITY FOR MOTOR
CARRIERS

0
52. The authority citation for part 387 continues to read as follows:

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

0
53. Amend Sec. 387.7 by revising paragraph (d)(3) to read as follows.

Sec. 387.7 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 Sec. 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.
* * * * *
0
54. Amend Sec. 387.309 by revising paragraph (a)(3) to read as
follows.

Sec. 387.309 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 Sec. 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.
* * * * *

PART 395--HOURS OF SERVICE OF DRIVERS

0
55. The authority citation for part 395 continues to read as follows:

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.

0
56. Amend Sec. 395.15 by revising paragraph (j)(2)(i) to read as
follows:

Sec. 395.15 Automatic on-board recording devices.

* * * * *
(j) * * *
(2) * * *
(i) The motor carrier has been issued an unfit safety fitness
determination by the FMCSA;
* * * * *

Issued under the authority delegated in 49 CFR 1.87 on: December
29, 2015.
T.F. Scott Darling, III,
Acting Administrator.
[FR Doc. 2015-33153 Filed 1-20-16; 8:45 am]
BILLING CODE 4910-EX-P

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