Appendix to Subpart H of Part 385 - Explanation of Pre-Authorization Safety Audit Evaluation Criteria for Non-North America-Domiciled Motor Carriers
49:5.1.1.2.28.8.11.9.10 :
Appendix to Subpart H of Part 385 - Explanation of
Pre-Authorization Safety Audit Evaluation Criteria for Non-North
America-Domiciled Motor Carriers I. General
(a) FMCSA will perform a safety audit of each non-North
America-domiciled motor carrier before granting the carrier new
entrant registration to operate within the United States.
(b) FMCSA will conduct the safety audit at a location specified
by the FMCSA. 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 new entrant registration, if any of these vehicles have not
received a decal required by § 385.703(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 CDL, Canadian Commercial
Driver's License, or Mexican Licencia de Federal de Conductor, as
applicable, of each driver the carrier intends to assign to operate
under its new entrant registration; 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 non-North
America-domiciled motor carrier must demonstrate to FMCSA that it
has the required elements in paragraphs I (c)(2), (3), (4), (7),
and (8) of this appendix and other basic safety management controls
in place which function adequately to ensure minimum acceptable
compliance with the applicable safety requirements. FMCSA developed
“safety audit evaluation criteria,” which uses data from the safety
audit and roadside inspections to determine that each applicant for
new entrant registration has basic safety management controls in
place.
(e) The safety audit evaluation process developed by FMCSA is
used to:
(1) Evaluate basic safety management controls and determine if
each non-North America-domiciled carrier and each driver is able to
operate safely in the United States; 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 issues new entrant registration to
operate within the United States.
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. FMCSA developed this
tool to assist auditors, inspectors, and investigators in assessing
the adequacy of a non-North America-domiciled carrier's basic
safety management controls.
(b) The safety audit is a review of a non-North
America-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; and
(2) In the event that a carrier is found not to be in compliance
with applicable FMCSRs and HMRs, 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, drug
and alcohol testing 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 receive new entrant registration if
FMCSA cannot:
(1) Verify a controlled substances and alcohol testing program
consistent with part 40 of this title;
(2) Verify a system of compliance with the 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 the qualifications of each driver the carrier intends
to assign to operate commercial motor vehicles in the United
States, as required by parts 383 and 391 of this subchapter,
including confirming the validity of each driver's CDL, Canadian
Commercial Driver's License, or Mexican Licencia de Federal de
Conductor, as appropriate.
(b) If FMCSA confirms each item under paragraphs III (a)(1)
through (5) of this appendix, the carrier will receive new entrant
registration, unless FMCSA finds the carrier has inadequate basic
safety management controls in at least three separate factors
described in part IV of this appendix. If FMCSA makes such a
determination, the carrier's application for new entrant
registration will be denied.
IV. Evaluation of Regulatory Compliance
(a) During the safety audit, 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; Parts 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 of this chapter 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 of this chapter.
(2) Roadside inspection information is retained in the MCMIS and
is integral to evaluating a motor carrier's ability to successfully
maintain its vehicles, thus preventing being placed OOS during a
roadside inspection. Each safety audit will continue to have the
requirements of part 396 of this chapter, 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) [Reserved]
(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) 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) of this appendix
(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 paragraph IV (k)(1)(vi) of this appendix, 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
paragraphs III (a)(1) through (5) of this appendix, if the safety
audit determines the carrier has inadequate basic safety management
controls in at least three separate factors described in paragraph
III of this appendix, the carrier's application for new entrant
registration 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 new entrant
registration 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.
Appendix A to Part 385 - Explanation of Safety Audit Evaluation Criteria
49:5.1.1.2.28.12.11.11.11 : Appendix A
Appendix A to Part 385 - Explanation of Safety Audit Evaluation
Criteria I. General
(a) Section 210 of the Motor Carrier Safety Improvement Act (49
U.S.C. 31144) directed the Secretary to establish a procedure
whereby each owner and each operator granted new authority must
undergo a safety review within 12 months after receipt of its US
DOT number for motor carriers of property and 120 days for motor
carriers of passengers. The Secretary was also required to
establish the elements of this safety review, including basic
safety management controls. The Secretary, in turn, delegated this
to the FMCSA.
(b) To meet the safety standard, a motor carrier must
demonstrate to the FMCSA that it has basic safety management
controls in place which function adequately to ensure minimum
acceptable compliance with the applicable safety requirements. A
“safety audit evaluation criteria” was developed by the FMCSA,
which uses data from the safety audit and roadside inspections to
determine that each owner and each operator applicant for new
entrant registration, provisional operating authority, or
provisional Certificate of Registration has basic safety management
controls in place. The term “safety audit” is the equivalent to the
“safety review” required by Sec. 210. Using “safety audit” avoids
any possible confusion with the safety reviews previously conducted
by the agency that were discontinued on September 30, 1994.
(c) The safety audit evaluation process developed by the FMCSA
is used to:
1. Evaluate basic safety management controls and determine if
each owner and each operator is able to operate safely in
interstate commerce; and
2. Identify owners and operators who are having safety problems
and need improvement in their compliance with the FMCSRs and the
HMRs, before they are granted permanent registration.
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. This tool was developed
to assist auditors and investigators in assessing the adequacy of a
new entrant's basic safety management controls.
(b) The safety audit is a review of a Mexico-domiciled or new
entrant 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 the 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. Determining if the Carrier Has Basic Safety Management
Controls
(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.
(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 basis of
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) FMCSA also gathers information on compliance with applicable
household goods and Americans with Disabilities Act of 1990
requirements, but failure to comply with these requirements does
not affect the determination of the adequacy of basic safety
management controls.
A. Vehicle Factor
(a) 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:
1. 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; and
2. 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.
(b) Over two million inspections occur on the roadside each
year. 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.
B. The Accident Factor
(a) 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.
(b) 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.
(c) 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 national
average accident rate in Fiscal Years 1994, 1995, and 1996.
(d) 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.”
C. Factor Ratings
For 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.
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.
IV. Overall Determination of the Carrier's Basic Safety Management
Controls
(a) If the carrier is evaluated as having inadequate basic
safety management controls in at least three separate factors, the
carrier will be considered to have inadequate safety management
controls in place and corrective action will be necessary in order
to avoid having its new entrant registration, provisional operating
authority, or provisional Certificate of Registration revoked.
(b) 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.
(c) In this example, the carrier 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. FMCSA will require corrective action in order to avoid
having the carrier's new entrant registration revoked, or having
the provisional operating authority or provisional Certificate of
Registration suspended and possibly revoked.
[67 FR 12773, Mar. 19, 2002, as amended a6 67 FR 31985, May 13,
2002; 73 FR 76496, Dec. 16, 2008; 78 FR 60232, Oct. 1, 2013]
Appendix B to Part 385 - Explanation of Safety Rating Process
49:5.1.1.2.28.12.11.11.12 : Appendix B
Appendix B to Part 385 - Explanation of Safety Rating Process
(a) Section 215 of the Motor Carrier Safety Act of 1984 (49
U.S.C. 31144) directed the Secretary of Transportation to establish
a procedure to determine the safety fitness of owners and operators
of commercial motor vehicles operating in interstate or foreign
commerce. The Secretary, in turn, delegated this responsibility to
the Federal Motor Carrier Safety Administration (FMCSA).
(b) As directed, FMCSA promulgated a safety fitness regulation,
entitled “Safety Fitness Procedures,” which established a procedure
to determine the safety fitness of motor carriers through the
assignment of safety ratings and established a “safety fitness
standard” which a motor carrier must meet to obtain a
satisfactory safety rating.
(c) To meet the safety fitness standard, a motor carrier must
demonstrate to the FMCSA that it has adequate safety management
controls in place which function effectively to ensure acceptable
compliance with the applicable safety requirements. A “safety
fitness methodology” (SFRM) was developed by the FMCSA, which uses
data from compliance reviews (CRs) and roadside inspections to rate
motor carriers.
(d) The safety rating process developed by FMCSA is used to:
1. Evaluate safety fitness and assign one of three safety
ratings (satisfactory, conditional, or
unsatisfactory) to motor carriers operating in interstate
commerce. This process conforms to 49 CFR 385.5, Safety fitness
standard, and § 385.7, Factors to be considered in determining a
safety rating.
2. Identify motor carriers needing improvement in their
compliance with the Federal Motor Carrier Safety Regulations
(FMCSRs) and applicable Hazardous Materials Regulations (HMRs).
These are carriers rated unsatisfactory or
conditional.
2. Identify motor carriers needing improvement in their
compliance with the Federal Motor Carrier Safety Regulations
(FMCSRs) and applicable Hazardous Materials Regulations (HMRs).
These are carriers rated Unsatisfactory or Conditional.
(e) The hazardous materials safety permit requirements of part
385, subpart E apply to intrastate motor carriers. Intrastate motor
carriers that are subject to the hazardous materials safety permit
requirements in subpart E will be rated using equivalent State
requirements whenever the FMCSRs are referenced in this
appendix.
(f) The safety rating will be determined by applying the SFRM
equally to all of a company's motor carrier operations in commerce,
including if applicable its operations in Canada and/or Mexico.
I. Source of Data for Rating Methodology
(a) The FMCSA's rating process is built upon the operational
tool known as the CR. This tool was developed to assist Federal and
State safety specialists in gathering pertinent motor carrier
compliance and accident information.
(b) The CR is an in-depth examination of a motor carrier's
operations and is used (1) to rate unrated motor carriers, (2) to
conduct a follow-up investigation on motor carriers rated
unsatisfactory or conditional as a result of a
previous review, (3) to investigate complaints, or (4) in response
to a request by a motor carrier to reevaluate its safety rating.
Documents such as those contained in driver qualification files,
records of duty status, vehicle maintenance records, and other
records are thoroughly examined for compliance with the FMCSRs and
HMRs. Violations are cited on the CR document. Performance-based
information, when available, is utilized to evaluate the carrier's
compliance with the vehicle regulations. Recordable accident
information is also collected.
II. Converting CR Information Into a Safety Rating
(a) The FMCSA gathers information through an in-depth
examination of the motor carrier's compliance with identified
“acute” or “critical” regulations of the FMCSRs and HMRs.
(b) Acute regulations are those identified as such where
noncompliance is so severe as to require immediate corrective
actions by a motor carrier regardless of the overall safety posture
of the motor carrier. An example of an acute regulation is §
383.37(b), allowing, requiring, permitting, or authorizing an
employee with more than one Commercial Driver's License (CDL) to
operate a commercial motor vehicle. Noncompliance with § 383.37(b)
is usually discovered when the motor carrier's driver qualification
file reflects that the motor carrier had knowledge of a driver with
more than one CDL, and still permitted the driver to operate a
commercial motor vehicle. If the motor carrier did not have such
knowledge or could not reasonably be expected to have such
knowledge, then a violation would not be cited.
(c) Critical regulations are those identified as such where
noncompliance relates to management and/or operational controls.
These are indicative of breakdowns in a carrier's management
controls. An example of a critical regulation is § 395.3(a)(1),
requiring or permitting a property-carrying commercial motor
vehicle driver to drive more than 11 hours.
(d) The list of the acute and critical regulations which are
used in determining safety ratings is included at the end of this
document.
(e) Noncompliance with acute regulations and patterns of
non-compliance with critical regulations are quantitatively linked
to inadequate safety management controls and usually higher than
average accident rates. The FMCSA has used noncompliance with acute
regulations and patterns of noncompliance with critical regulations
since 1989 to determine motor carriers' adherence to the Safety
fitness standard in § 385.5.
(f) The regulatory factors, evaluated on the basis of the
adequacy of the carrier's safety management controls, are: (1)
Parts 172 and 173; (2) Parts 387 and 390; (3) Parts 382, 383, and
391; (4) Parts 392 and 395; (5) Parts 393 and 396 when there are
less than three vehicle inspections in the last 12 months to
evaluate; and (6) Parts 397, 171, 177 and 180.
(g) For each instance of noncompliance with an acute regulation
or each pattern of noncompliance with a critical regulation during
the CR, one point will be assessed. A pattern is more than one
violation. When a number of documents are reviewed, the number of
violations required to meet a pattern is equal to at least 10
percent of those examined.
(h) However, each pattern of noncompliance with a critical
regulation relative to Part 395, Hours of Service of Drivers, will
be assessed two points.
A. Vehicle Factor
(a) When a total of three or more inspections are recorded in
the Motor Carrier Management Information System (MCMIS) during the
twelve months prior to the CR or performed at the time of the
review, the Vehicle Factor (Parts 393 and 396) will be
evaluated on the basis of the Out-of-Service (OOS) rates and
noncompliance with acute regulations and/or a pattern of
noncompliance with critical regulations. The results of the review
of the OOS rate will affect the Vehicle Factor rating as
follows:
1. If a motor carrier has three or more roadside vehicle
inspections in the twelve months prior to the carrier review, or
three vehicles inspected at the time of the review, or a
combination of the two totaling three or more, and the vehicle OOS
rate is 34 percent or greater, the initial factor rating will be
conditional. The requirements of Part 396, Inspection,
Repair, and Maintenance, will be examined during each review. The
results of the examination could lower the factor rating to
unsatisfactory if noncompliance with an acute regulation or
a pattern of noncompliance with a critical regulation is
discovered. If the examination of the Part 396 requirements reveals
no such problems with the systems the motor carrier is required to
maintain for compliance, the Vehicle Factor remains
conditional.
2. If a carrier's vehicle OOS rate is less than 34 percent, the
initial factor rating will be satisfactory. If noncompliance
with an acute regulation or a pattern of noncompliance with a
critical regulation is discovered during the examination of Part
396 requirements, the factor rating will be lowered to
conditional. If the examination of Part 396 requirements
discovers no such problems with the systems the motor carrier is
required to maintain for compliance, the Vehicle Factor remains
satisfactory.
(b) Nearly two million vehicle inspections occur on the roadside
each year. 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. Since many of the
roadside inspections are targeted to visibly defective vehicles and
since there are a limited number of inspections for many motor
carriers, the use of that data is limited. Each CR will continue to
have the requirements of Part 396, Inspection, Repair, and
Maintenance, reviewed as indicated by the above explanation.
B. Accident Factor
(a) In addition to the five regulatory rating 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
for the past 12 months. A recordable accident, consistent with the
definition for “accident” in 49 CFR 390.5, means an occurrence
involving a commercial motor vehicle on a highway in motor carrier
operations in commerce or within Canada or Mexico (if the motor
carrier also operates in the United States) 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 accident; 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.
(b) Recordable accidents per million miles were computed for
each CR performed in Fiscal Years 1994,1995 and 1996. The national
average for all carriers rated was 0.747, and .839 for carriers
operating entirely within the 100 air mile radius.
(c) Experience has shown that urban carriers, those motor
carriers operating primarily within a radius of less than 100 air
miles (normally in urban areas) have a higher exposure to accident
situations because of their environment and normally have higher
accident rates.
(d) The recordable accident rate will be used to rate Factor 6,
Accident. It will be used only when a motor carrier incurs two or
more recordable accidents occurred within the 12 months prior to
the CR. An urban carrier (a carrier operating entirely within a
radius of 100 air miles) with a recordable accident rate greater
than 1.7 will receive an unsatisfactory rating for the
accident factor. All other carriers with a recordable accident rate
greater than 1.5 will receive an unsatisfactory factor
rating. The rates are a result of roughly doubling the national
average accident rate for each type of carrier rated in Fiscal
Years 1994, 1995 and 1996.
(e) The FMCSA will continue to consider preventability when a
motor carrier contests a rating 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.”
C. Factor Ratings
(a) Parts of the FMCSRs and the HMRs having similar
characteristics are combined together into five regulatory areas
called “factors.”
(b) The following table shows the five regulatory factors, parts
of the FMCSRs and HMRs associated with each factor, and the
accident factor. Factor Ratings are determined as follows:
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 Haz. Mat. = Parts
397, 171, 177 and 180 Factor 6 Accident Factor = Recordable Rate
“Satisfactory” - if the acute and/or critical = 0 points
“Conditional” - if the acute and/or critical = 1 point
“Unsatisfactory” - if the acute and/or critical = 2 or more points
III. Safety Rating A. Rating Table
(a) The ratings for the six factors are then entered into a
rating table which establishes the motor carrier's safety
rating.
(b) The FMCSA has developed a computerized rating formula for
assessing the information obtained from the CR document and is
using that formula in assigning a safety rating.
Motor Carrier Safety Rating Table
Factor
ratings |
Overall
Safety rating |
Unsatisfactory |
Conditional |
0 |
2 or fewer |
Satisfactory |
0 |
more than 2 |
Conditional |
1 |
2 or fewer |
Conditional |
1 |
more than 2 |
Unsatisfactory |
2 or more |
0 or more |
Unsatisfactory |
B. Proposed Safety Rating
(a) The proposed safety rating will appear on the CR. The
following appropriate information will appear after the last entry
on the CR, MCS-151, part B.
“Your proposed safety rating is SATISFACTORY.”
OR
“Your proposed safety rating is CONDITIONAL.” The proposed
safety rating will become the final safety rating 45 days after you
receive this notice.
OR
“Your proposed safety rating is UNSATISFACTORY.” The proposed
safety rating will become the final safety rating 45 days after you
receive this notice
(b) Proposed safety ratings of conditional or
unsatisfactory will list the deficiencies discovered during
the CR for which corrective actions must be taken.
(c) Proposed unsatisfactory safety ratings will indicate
that, if the unsatisfactory rating becomes final, the motor
carrier will be subject to the provision of § 385.13, which
prohibits motor carriers rated unsatisfactory from
transporting hazardous materials requiring placarding or more than
15 passengers, including the driver.
IV. Assignment of Final Rating/Motor Carrier Notification
When the official rating is determined in Washington, D.C., the
FMCSA notifies the motor carrier in writing of its safety rating as
prescribed in § 385.11. A proposed conditional safety rating
(which is an improvement of an existing unsatisfactory
rating) becomes effective as soon as the official safety rating
from Washington, D.C. is issued, and the carrier may also avail
itself of relief under the § 385.15, Administrative Review and §
385.17, Change to safety rating based on corrective actions.
V. Motor Carrier Rights to a Change in the Safety Rating
Under §§ 385.15 and 385.17, motor carriers have the right to
petition for a review of their ratings if there are factual or
procedural disputes, and to request another review after
corrective actions have been taken. They are the procedural avenues
a motor carrier which believes its safety rating to be in error may
exercise, and the means to request another review after corrective
action has been taken.
VI. Conclusion
(a) The FMCSA believes this “safety fitness rating methodology”
is a reasonable approach for assigning a safety rating which best
describes the current safety fitness posture of a motor carrier as
required by the safety fitness regulations (§ 385.9). This
methodology has the capability to incorporate regulatory changes as
they occur.
(b) Improved compliance with the regulations leads to an
improved rating, which in turn increases safety. This increased
safety is our regulatory goal.
VII. List of Acute and Critical Regulations. § 382.115(a) Failing
to implement an alcohol and/or controlled substances testing
program (domestic motor carrier) (acute). § 382.115(b) Failing to
implement an alcohol and/or controlled substances testing program
(foreign motor carrier) (acute). § 382.201 Using a driver known to
have an alcohol concentration of 0.04 or greater (acute). § 382.211
Using a driver who has refused to submit to an alcohol or
controlled substances test required under part 382 (acute). §
382.213(c) Using a driver known to have used a controlled substance
(acute). § 382.215 Using a driver known to have tested positive for
a controlled substance (acute). § 382.301(a) Using a driver before
the motor carrier has received a negative pre-employment controlled
substance test result (critical). § 382.303(a) Failing to conduct
post accident testing on driver for alcohol (critical). §
382.303(b) Failing to conduct post accident testing on driver for
controlled substances (critical). § 382.305 Failing to implement a
random controlled substances and/or an alcohol testing program
(acute). § 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 (critical). § 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 (critical). § 382.309 Using a
driver who has not undergone return-to-duty testing with a negative
drug test result and/or an alcohol test with an alcohol
concentration of less than 0.02 in accordance with 49 CFR 40.305
(acute). § 382.503 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 (critical). § 382.505(a) Using a driver
within 24 hours after being found to have an alcohol concentration
of 0.02 or greater but less than 0.04 (acute). § 382.605 Failing to
subject a driver who has been identified as needing assistance to
at least six unannounced follow-up drug and/or alcohol tests in the
first 12 months following the driver's return-to-duty in accordance
with 49 CFR 40.307 (critical). § 383.23(a) Operating a commercial
motor vehicle without a valid commercial driver's license
(critical). § 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 (acute). § 383.37(b) Knowingly
allowing, requiring, permitting, or authorizing an employee with a
commercial driver's license which is suspended, revoked, or
canceled by a state or who is disqualified to operate a commercial
motor vehicle (acute). § 383.37(c) Knowingly allowing, requiring,
permitting, or authorizing an employee with more than one
commercial driver's license to operate a commercial motor vehicle
(acute). § 383.51(a) Knowingly allowing, requiring, permitting, or
authorizing a driver to drive who is disqualified to drive a
commercial motor vehicle (acute). § 387.7(a) Operating a motor
vehicle without having in effect the required minimum levels of
financial responsibility coverage (acute). § 387.7(d) Failing to
maintain at principal place of business required proof of financial
responsibility (critical). § 387.31(a) Operating a passenger
carrying vehicle without having in effect the required minimum
levels of financial responsibility (acute). § 387.31(d) Failing to
maintain at principal place of business required proof of financial
responsibility for passenger carrying vehicles (critical). §
390.15(b)(2) Failing to maintain copies of all accident reports
required by State or other governmental entities or insurers
(critical). § 390.35 Making, or causing to make fraudulent or
intentionally false statements or records and/or reproducing
fraudulent records (acute). § 391.11(b)(4) Using a physically
unqualified driver (acute). § 391.15(a) Using a disqualified driver
(acute). § 391.45(a) Using a driver not medically examined and
certified (critical). § 391.45(b) Using a driver not medically
examined and certified during the preceding 24 months (critical). §
391.51(a) Failing to maintain driver qualification file on each
driver employed (critical). § 391.51(b)(2) Failing to maintain
inquiries into driver's driving record in driver's qualification
file (critical). § 391.51(b)(7) Failing to maintain medical
examiner's certificate in driver's qualification file (critical). §
392.2 Operating a motor vehicle not in accordance with the laws,
ordinances, and regulations of the jurisdiction in which it is
being operated (critical). § 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
(acute). § 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 (acute). § 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
(acute). § 392.6 Scheduling a run which would necessitate the
vehicle being operated at speeds in excess of those prescribed
(critical). § 392.9(a)(1) Requiring or permitting a driver to drive
without the vehicle's cargo being properly distributed and
adequately secured (critical). § 395.1(h)(1)(i)(A) Requiring or
permitting a property-carrying commercial motor vehicle driver to
drive more than 15 hours (Driving in Alaska) (critical). §
395.1(h)(1)(i)(B) Requiring or permitting a property-carrying
commercial motor vehicle driver to drive after having been on duty
20 hours (Driving in Alaska) (critical). § 395.1(h)(1)(i)(C)
Requiring or permitting a property-carrying commercial motor
vehicle driver to drive after having been on duty more than 70
hours in 7 consecutive days (Driving in Alaska) (critical). §
395.1(h)(1)(i)(D) Requiring or permitting a property-carrying
commercial motor vehicle 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
passenger-carrying commercial motor vehicle driver to drive more
than 15 hours (Driving in Alaska) (critical). § 395.1(h)(2)(ii)
Requiring or permitting a passenger-carrying commercial motor
vehicle driver to drive after having been on duty 20 hours (Driving
in Alaska) (critical). § 395.1(h)(2)(iii) Requiring or permitting a
passenger-carrying commercial motor vehicle 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 passenger-carrying commercial motor vehicle 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 property-carrying commercial motor vehicle driver to
drive after having been on duty 16 consecutive hours (critical). §
395.3(a)(1) Requiring or permitting a property-carrying commercial
motor vehicle 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 property-carrying commercial
motor vehicle driver to drive after the end of the 14th hour after
coming on duty (critical). § 395.3(a)(3)(i) Requiring or permitting
a property-carrying commercial motor vehicle driver to drive more
than 11 hours (critical). § 395.3(a)(3)(ii) Requiring or permitting
a property-carrying commercial motor vehicle driver to drive if
more than 8 hours of driving time have passed without a consecutive
interruption in driving status of at least 30 minutes, either
off-duty, sleeper berth or on-duty not driving (critical). §
395.3(b)(1) Requiring or permitting a property-carrying commercial
motor vehicle 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 property-carrying commercial motor vehicle 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 passenger-carrying commercial motor vehicle driver to drive more
than 10 hours (critical). § 395.5(a)(2) Requiring or permitting a
passenger-carrying commercial motor vehicle driver to drive after
having been on duty 15 hours (critical). § 395.5(b)(1) Requiring or
permitting a passenger-carrying commercial motor vehicle driver to
drive after having been on duty more than 60 hours in 7 consecutive
days (critical). § 395.5(b)(2) Requiring or permitting a
passenger-carrying commercial motor vehicle driver to drive after
having been on duty more than 70 hours in 8 consecutive days
(critical). § 395.8(a)(1) Failing to require a driver to prepare a
record of duty status using appropriate method (critical). §
395.8(a)(2)(ii) Failure to require a driver to submit record of
duty status (critical). § 395.8(e)(1) Making, or permitting a
driver to make, a false report regarding duty status (critical). §
395.8(e)(2) or (3) Disabling, deactivating, disengaging, jamming,
or otherwise blocking or degrading a signal transmission or
reception; tampering with an automatic on-board recording device or
ELD; or permitting or requiring another person to engage in such
activity (acute). § 395.8(k)(1) Failing to preserve a driver's
record of duty status or supporting documents for 6 months
(critical). § 395.11(b) Failing to require a driver to submit
supporting documents (critical). § 395.11(c) Failing to retain
types of supporting documents as required by § 395.11(c)
(critical). § 395.11(e) Failing to retain supporting documents in a
manner that permits the effective matching of the documents to the
driver's record of duty status (critical). § 395.11(f) Altering,
defacing, destroying, mutilating, or obscuring a supporting
document (critical). § 395.30(f) Failing to retain ELD information
(acute). § 396.3(b) Failing to keep minimum records of inspection
and vehicle maintenance (critical). § 396.9(c)(2) Requiring or
permitting the operation of a motor vehicle declared
“out-of-service” before repairs were made (acute). § 396.11(a)
Failing to require driver to prepare driver vehicle inspection
report (critical). § 396.11(a)(3) Failing to correct Out-of-Service
defects listed by driver in a driver vehicle inspection report
before the vehicle is operated again (acute) § 396.17(a) Using a
commercial motor vehicle not periodically inspected (critical). §
396.17(g) Failing to promptly repair parts and accessories not
meeting minimum periodic inspection standards (acute). § 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 (acute). § 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 (critical). §
397.7(b) Parking a motor vehicle containing hazardous material(s)
other than Division 1.1, 1.2, or 1.3 materials within 5 feet of
traveled portion of highway or street (critical). § 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 (critical). §
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
(critical). § 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 (critical).
§ 171.15 Carrier failing to give immediate telephone notice of an
incident involving hazardous materials (critical). § 171.16 Carrier
failing to make a written report of an incident involving hazardous
materials (critical). § 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”
(acute). § 172.704(a)(4) Failing to provide security awareness
training (critical). § 172.704(a)(5) Failing to provide in-depth
security awareness training (critical). § 172.800(b) Transporting
HM without a security plan (acute). § 172.800(b) Transporting HM
without a security plan that conforms to Subpart I requirements
(acute). § 172.800(b) Failure to adhere to a required security plan
(acute). § 173.24(b)(1) Accepting for transportation or
transporting a package that has an identifiable release of a
hazardous material to the environment (acute). § 173.421 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) (acute). § 173.431(a) Accepting for transportation
or transporting in a Type A packaging a greater quantity of Class 7
(radioactive) material than authorized (acute). § 173.431(b)
Accepting for transportation or transporting in a Type B packaging
a greater quantity of Class 7 (radioactive) material than
authorized (acute). § 173.441(a) Accepting for transportation or
transporting a package containing Class 7 (radioactive) material
with external radiation exceeding allowable limits (acute). §
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 °C
(122 °F) in other than an exclusive use shipment, or 85 °C (185 °F)
in an exclusive use shipment (acute). § 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 (acute). §
177.800(c) Failing to instruct a category of employees in hazardous
materials regulations (critical). § 177.801 Accepting for
transportation or transporting a forbidden material (acute). §
177.835(a) Loading or unloading a Class 1 (explosive) material with
the engine running (acute). § 177.835(c) Accepting for
transportation or transporting Division 1.1 or 1.2 (explosive)
materials in a motor vehicle or combination of vehicles that is not
permitted (acute). § 177.835(j) Transferring Division 1.1, 1.2, or
1.3 (explosive) materials between containers or motor vehicles when
not permitted (acute). § 177.817(a) Transporting a shipment of
hazardous materials not accompanied by a properly prepared shipping
paper (critical). § 177.817(e) Failing to maintain proper
accessibility of shipping papers (critical). § 177.823(a) Moving a
transport vehicle containing hazardous material that is not
properly marked or placarded (critical). § 177.841(e) Transporting
a package bearing a poison label in the same transport vehicle with
material marked or known to be foodstuff, feed, or any edible
material intended for consumption by humans or animals unless an
exception in § 177.841(e)(i) or (ii) is met (acute). § 180.407(a)
Transporting a shipment of hazardous material in cargo tank that
has not been inspected or retested in accordance with § 180.407
(critical). § 180.407(c) Failing to periodically test and inspect a
cargo tank (critical). § 180.415 Failing to mark a cargo tank which
passed an inspection or test required by § 180.407 (critical). §
180.417(a)(1) Failing to retain cargo tank manufacturer's data
report certificate and related papers, as required (critical). §
180.417(a)(2) Failing to retain copies of cargo tank manufacturer's
certificate and related papers (or alternative report) as required
(critical). [62 FR 60043, Nov. 6, 1997] Editorial Note:For Federal
Register citations affecting appendix B to part 385, see the List
of CFR Sections Affected, which appears in the Finding Aids section
of the printed volume and at
www.govinfo.gov.