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