Appendix A to Subpart E of Part 365 - Explanation of Pre-Authorization Safety Audit Evaluation Criteria for Mexico-Domiciled Motor Carriers
49:5.1.1.2.8.6.1.9.1 : Appendix A
Appendix A to Subpart E of Part 365 - Explanation of
Pre-Authorization Safety Audit Evaluation Criteria for
Mexico-Domiciled Motor Carriers I. General
(a) Section 350 of the Fiscal Year 2002 DOT Appropriations Act
(Pub. L. 107-87) directed the FMCSA to perform a safety audit of
each Mexico-domiciled motor carrier before the FMCSA grants the
carrier provisional operating authority to operate beyond United
States municipalities and commercial zones on the United
States-Mexico international border.
(b) The FMCSA will decide whether it will conduct the safety
audit at the Mexico-domiciled motor carrier's principal place of
business in Mexico or at a location specified by the FMCSA in the
United States, in accordance with the statutory requirements that
50 percent of all safety audits must be conducted onsite and
on-site inspections cover at least 50 percent of estimated truck
traffic in any year. All records and documents must be made
available for examination within 48 hours after a request is made.
Saturdays, Sundays, and Federal holidays are excluded from the
computation of the 48-hour period.
(c) The safety audit will include:
(1) Verification of available performance data and safety
management programs;
(2) Verification of a controlled substances and alcohol testing
program consistent with part 40 of this title;
(3) Verification of the carrier's system of compliance with
hours-of-service rules in part 395 of this subchapter, including
recordkeeping and retention;
(4) Verification of proof of financial responsibility;
(5) Review of available data concerning the carrier's safety
history, and other information necessary to determine the carrier's
preparedness to comply with the Federal Motor Carrier Safety
Regulations, parts 382 through 399 of this subchapter, and the
Federal Hazardous Material Regulations, parts 171 through 180 of
this title;
(6) Inspection of available commercial motor vehicles to be used
under provisional operating authority, if any of these vehicles
have not received a decal required by § 385.103(c) of this
subchapter;
(7) Evaluation of the carrier's safety inspection, maintenance,
and repair facilities or management systems, including verification
of records of periodic vehicle inspections;
(8) Verification of drivers' qualifications, including
confirmation of the validity of the Licencia de Federal de
Conductor of each driver the carrier intends to assign to operate
under its provisional operating authority; and
(9) An interview of carrier officials to review safety
management controls and evaluate any written safety oversight
policies and practices.
(d) To successfully complete the safety audit, a
Mexico-domiciled motor carrier must demonstrate to the FMCSA that
it has the required elements in paragraphs (c)(2), (3), (4), (7),
and (8) above and other basic safety management controls in place
which function adequately to ensure minimum acceptable compliance
with the applicable safety requirements. The FMCSA developed a
“safety audit evaluation criteria,” which uses data from the safety
audit and roadside inspections to determine that each applicant for
provisional operating authority has basic safety management
controls in place.
(e) The safety audit evaluation process developed by the FMCSA
is used to:
(1) Evaluate basic safety management controls and determine if
each Mexico-domiciled carrier and each driver is able to operate
safely in the United States beyond municipalities and commercial
zones on the United States-Mexico international border; and
(2) Identify motor carriers and drivers who are having safety
problems and need improvement in their compliance with the FMCSRs
and the HMRs, before FMCSA grants the carriers provisional
operating authority to operate beyond United States municipalities
and commercial zones on the United States-Mexico international
border.
II. Source of the Data for the Safety Audit Evaluation Criteria
(a) The FMCSA's evaluation criteria are built upon the
operational tool known as the safety audit. The FMCSA developed
this tool to assist auditors and investigators in assessing the
adequacy of a Mexico-domiciled carrier's basic safety management
controls.
(b) The safety audit is a review of a Mexico-domiciled motor
carrier's operation and is used to:
(1) Determine if a carrier has the basic safety management
controls required by 49 U.S.C. 31144;
(2) Meet the requirements of section 350 of the DOT
Appropriations Act; and
(3) In the event that a carrier is found not to be in compliance
with applicable FMCSRs and HMRs, the safety audit can be used to
educate the carrier on how to comply with U.S. safety rules.
(c) Documents such as those contained in driver qualification
files, records of duty status, vehicle maintenance records, and
other records are reviewed for compliance with the FMCSRs and HMRs.
Violations are cited on the safety audit. Performance-based
information, when available, is utilized to evaluate the carrier's
compliance with the vehicle regulations. Recordable accident
information is also collected.
III. Overall Determination of the Carrier's Basic Safety Management
Controls
(a) The carrier will not be granted provisional operating
authority if the FMCSA fails to:
(1) Verify a controlled substances and alcohol testing program
consistent with part 40 of this title;
(2) Verify a system of compliance with hours-of-service rules of
this subchapter, including recordkeeping and retention;
(3) Verify proof of financial responsibility;
(4) Verify records of periodic vehicle inspections; and
(5) Verify drivers' qualifications of each driver the carrier
intends to assign to operate under such authority, as required by
parts 383 and 391 of this subchapter, including confirming the
validity of each driver's Licencia de Federal de Conductor.
(b) If the FMCSA confirms each item under III (a)(1) through (5)
above, the carrier will be granted provisional operating authority,
except if FMCSA finds the carrier has inadequate basic safety
management controls in at least three separate factors described in
part IV below. If FMCSA makes such a determination, the carrier's
application for provisional operating authority will be denied.
IV. Evaluation of Regulatory Compliance
(a) During the safety audit, the FMCSA gathers information by
reviewing a motor carrier's compliance with “acute” and “critical”
regulations of the FMCSRs and HMRs.
(b) Acute regulations are those where noncompliance is so severe
as to require immediate corrective actions by a motor carrier
regardless of the overall basic safety management controls of the
motor carrier.
(c) Critical regulations are those where noncompliance relates
to management and/or operational controls. These are indicative of
breakdowns in a carrier's management controls.
(d) The list of the acute and critical regulations, which are
used in determining if a carrier has basic safety management
controls in place, is included in Appendix B, VII. List of Acute
and Critical Regulations to part 385 of this subchapter.
(e) Noncompliance with acute and critical regulations are
indicators of inadequate safety management controls and usually
higher than average accident rates.
(f) Parts of the FMCSRs and the HMRs having similar
characteristics are combined together into six regulatory areas
called “factors.” The regulatory factors, evaluated on the adequacy
of the carrier's safety management controls, are:
(1) Factor 1 - General: Parts 387 and 390;
(2) Factor 2 - Driver: Parts 382, 383 and 391;
(3) Factor 3 - Operational: Parts 392 and 395;
(4) Factor 4 - Vehicle: Part 393, 396 and inspection data for
the last 12 months;
(5) Factor 5 - Hazardous Materials: Parts 171, 177, 180 and 397;
and
(6) Factor 6 - Accident: Recordable Accident Rate per Million
Miles.
(g) For each instance of noncompliance with an acute regulation,
1.5 points will be assessed.
(h) For each instance of noncompliance with a critical
regulation, 1 point will be assessed.
(i) Vehicle Factor. (1) When at least three vehicle
inspections are recorded in the Motor Carrier Management
Information System (MCMIS) during the twelve months before the
safety audit or performed at the time of the review, the Vehicle
Factor (part 396) will be evaluated on the basis of the
Out-of-Service (OOS) rates and noncompliance with acute and
critical regulations. The results of the review of the OOS rate
will affect the Vehicle Factor as follows:
(i) If the motor carrier has had at least three roadside
inspections in the twelve months before the safety audit, and the
vehicle OOS rate is 34 percent or higher, one point will be
assessed against the carrier. That point will be added to any other
points assessed for discovered noncompliance with acute and
critical regulations of part 396 to determine the carrier's level
of safety management control for that factor.
(ii) If the motor carrier's vehicle OOS rate is less than 34
percent, or if there are less than three inspections, the
determination of the carrier's level of safety management controls
will only be based on discovered noncompliance with the acute and
critical regulations of part 396.
(2) Over two million inspections occur on the roadside each year
in the United States. This vehicle inspection information is
retained in the MCMIS and is integral to evaluating motor carriers'
ability to successfully maintain their vehicles, thus preventing
them from being placed OOS during roadside inspections. Each safety
audit will continue to have the requirements of part 396,
Inspection, Repair, and Maintenance, reviewed as indicated by the
above explanation.
(j) Accident Factor. (1) In addition to the five
regulatory factors, a sixth factor is included in the process to
address the accident history of the motor carrier. This factor is
the recordable accident rate, which the carrier has experienced
during the past 12 months. Recordable accident, as defined in 49
CFR 390.5, means an accident involving a commercial motor vehicle
operating on a public road in interstate or intrastate commerce
which results in a fatality; a bodily injury to a person who, as a
result of the injury, immediately receives medical treatment away
from the scene of the accident; or one or more motor vehicles
incurring disabling damage as a result of the accident requiring
the motor vehicle to be transported away from the scene by a tow
truck or other motor vehicle.
(2) Experience has shown that urban carriers, those motor
carriers operating entirely within a radius of less than 100 air
miles (normally urban areas), have a higher exposure to accident
situations because of their environment and normally have higher
accident rates.
(3) The recordable accident rate will be used in determining the
carrier's basic safety management controls in Factor 6, Accident.
It will be used only when a carrier incurs two or more recordable
accidents within the 12 months before the safety audit. An urban
carrier (a carrier operating entirely within a radius of 100 air
miles) with a recordable rate per million miles greater than 1.7
will be deemed to have inadequate basic safety management controls
for the accident factor. All other carriers with a recordable
accident rate per million miles greater than 1.5 will be deemed to
have inadequate basic safety management controls for the accident
factor. The rates are the result of roughly doubling the United
States national average accident rate in Fiscal Years 1994, 1995,
and 1996.
(4) The FMCSA will continue to consider preventability when a
new entrant contests the evaluation of the accident factor by
presenting compelling evidence that the recordable rate is not a
fair means of evaluating its accident factor. Preventability will
be determined according to the following standard: “If a driver,
who exercises normal judgment and foresight, could have foreseen
the possibility of the accident that in fact occurred, and avoided
it by taking steps within his/her control which would not have
risked causing another kind of mishap, the accident was
preventable.”
(k) Factor Ratings. (1) The following table shows the
five regulatory factors, parts of the FMCSRs and HMRs associated
with each factor, and the accident factor. Each carrier's level of
basic safety management controls with each factor is determined as
follows:
(i) Factor 1 - General: Parts 390 and 387;
(ii) Factor 2 - Driver: Parts 382, 383, and 391;
(iii) Factor 3 - Operational: Parts 392 and 395;
(iv) Factor 4 - Vehicle: Parts 393, 396 and the Out of Service
Rate;
(v) Factor 5 - Hazardous Materials: Part 171, 177, 180 and 397;
and
(vi) Factor 6 - Accident: Recordable Accident Rate per Million
Miles;
(2) For paragraphs IV (k)(1)(i) through (v) (Factors 1 through
5), if the combined violations of acute and or critical regulations
for each factor is equal to three or more points, the carrier is
determined not to have basic safety management controls for that
individual factor.
(3) For paragraphs IV (k)(1)(vi), if the recordable accident
rate is greater than 1.7 recordable accidents per million miles for
an urban carrier (1.5 for all other carriers), the carrier is
determined to have inadequate basic safety management controls.
(l) Notwithstanding FMCSA verification of the items listed in
part III (a)(1) through (5) above, if the safety audit determines
the carrier has inadequate basic safety management controls in at
least three separate factors described in part IV, the carrier's
application for provisional operating authority will be denied. For
example, FMCSA evaluates a carrier finding:
(1) One instance of noncompliance with a critical regulation in
part 387 scoring one point for Factor 1;
(2) Two instances of noncompliance with acute regulations in
part 382 scoring three points for Factor 2;
(3) Three instances of noncompliance with critical regulations
in part 396 scoring three points for Factor 4; and
(4) Three instances of noncompliance with acute regulations in
parts 171 and 397 scoring four and one-half (4.5) points for Factor
5.
Under this example, the carrier will not receive provisional
operating authority because it scored three or more points for
Factors 2, 4, and 5 and FMCSA determined the carrier had inadequate
basic safety management controls in at least three separate
factors.
[67 FR 12714, Mar. 19, 2002, as amended at 78 FR 58478, Sept. 24,
2013]