The Federal Motor Carrier Safety Administration (“FMCSA”) published a Notice of Proposed Rulemaking (“NPRM”) in the Federal Register on January 21, 2016 setting forth proposed rules for determining the safety fitness rating for interstate motor carriers that is based on on-road safety data and the results of safety investigations. Comments from interested parties are due on March 21, 2016 and reply comments are due on April 20, 2016.
Highlights from the NPRM are as follows:
New Safety Fitness Determination (“SFD”) – “Unfit”: FMCSA proposed to eliminate the current three-tier safety rating system: Satisfactory; Conditional; or Unsatisfactory which is based on motor carrier compliance reviews. Instead, the agency proposed to evaluate carriers monthly to determine whether their safety data supports designating them as “proposed unfit.” Carriers ultimately determined to be “unfit” will be prohibited from operating in interstate commerce or performing transportation that affects interstate commerce.
Three Paths to an “Unfit” SFD. In making its unfit SFD, the FMCSA would evaluate carriers monthly using data from roadside inspections or investigations or, both. Accordingly, a motor carrier’s SFD would be based on:
- On-Road Data. A carrier’s safety data from on-road safety inspections that is compiled and converted into a Behavior Analysis and Safety Improvement Category (“BASIC”) measure based on the Carrier Safety Measurement System (“SMS”) Methodology that’s been available to the public since Dec. 2010.
- Only the following five of seven BASICs are applicable when using on-road data to determine a carrier’s SFD (note, two additional BASICs are considered during investigations, discussed further below):
- Unsafe Driving,
- Hours of Service (“HOS”) Compliance,
- Vehicle Maintenance,
- Hazardous Materials Compliance, and
- Driver Fitness.
- A carrier will be proposed unfit if the carrier fails two or more BASICs, based on absolute failure standards proposed by the agency. Failure could be based exclusively on roadside safety data from, at minimum, 11+ inspections with 1 or more violations in a single BASIC during the last 24 months.
- This approach is intended to result in only the worst performing motor carriers being issued an unfit determination based solely on on-road safety performance data.
- Only the following five of seven BASICs are applicable when using on-road data to determine a carrier’s SFD (note, two additional BASICs are considered during investigations, discussed further below):
- Investigation. This approach would provide a SFD based on a carrier’s violations of the proposed set of critical and acute FMCSA safety regulations, which violations are identified during an investigation. Violation of an acute regulation associated with a BASIC would result in failure of that BASIC. Violation of a critical regulation could result in failure of a particular BASIC if violations are discovered in a minimum of 10 percent of the records examined during the investigation.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.” 81 Fed. Reg. 3579. Investigations could be performed offsite or onsite.
- A carrier’s SFD will be proposed unfit if the identified violations of the acute or critical regulations cause the carrier to fail two or more BASICs.
- The following two BASICs, Crash Indicator and the Controlled Substances/Alcohol Compliance, will be relevant only during investigations because of the following reliability concerns based on road-side performance data:
- Crash Indicator category currently does not include a preventability determination, and
- Controlled Substances and Alcohol violations from on-road safety data rarely meets the data sufficiency standards.
- Inspections & Investigations Data. A carrier can also be proposed unfit if the carrier fails two or more BASICs based on a combination of data from inspections and investigation results.
Absolute Failure Standards. As noted above, under the NPRM, a carrier’s performance would be compared each month to the absolute failure standard that will be set by regulation and based on each safety event group. A carrier meeting or exceeding an absolute failure standard for a particular BASIC in its safety event group would fail the BASIC based only on-road safety data. Failure standards for each BASIC have been proposed in the NPRM but will be updated in the agency’s Final Rule for several safety event groups. Safety event groupings would be based on the total amount of roadside inspections a carrier received. Carriers with more inspections (more drivers) would be placed in a different group than other carriers with less inspections (fewer drivers). Thus, the standard used to evaluate safety performance will not change from month to month and, a carrier’s SFD will not be impacted by other carriers’ performance data.
Responses to Unfit SFD. After a carrier receives a proposed unfit SFD, it may pursue any of the following three administrative proceedings: (1) a review for material errors in assigning a proposed unfit SFD; (2) a review claiming unconsidered on-road performance inspection data; or (3) request to continue to operate under a compliance agreement that specifies certain monitoring and performance terms. Note, however, the NPRM would decrease the current 90 day time period to pursue such action to only 15 days.
The NPRM also proposed to establish new procedures that a carrier would have to comply with to resume operating as an interstate motor carrier following a final unfit SFD, including reapplying for new safety registration and reactivating the carrier’s USDOT Number, as well as obtaining approval of a corrective action plan.
A copy of the NPRM, as published in the Federal Register, may be accessed here:
https://www.gpo.gov/fdsys/pkg/FR-2016-01-21/pdf/2015-33153.pdf.
FAST Act May Impact the NPRM. The NPRM requires FMCSA to rely on safety data that is compiled in the agency’s Safety Measurement System (SMS). The SMS is an automated system that is updated monthly and measures on-road safety performance of motor carriers to: (i) identify carriers for intervention, (ii) identify specific safety problems, and (iii) monitor whether a carrier’s performance is improving or getting worse. The SMS categorizes carriers’ safety performance data into the seven BASICs described above. Based on this data, the FMCSA determined a carrier’s rank/percentile for each BASIC or a “quantifiable determination” of a specific carrier’s safety behavior in that BASIC. These rankings allowed carriers’ safety behavior to be compared to other carriers with similar numbers of safety events (i.e. safety event groups) every month. As a result, improved safety performance by one carrier in a peer group could result in another carrier having higher (worse) BASICs’ percentiles without having committed additional violations. While the SMS was used by FMCSA to target carriers for safety interventions it was not tied directly to the carrier’s SFD.
Notably, when Congress passed the Fixing America’s Surface Transportation (FAST) Act in December 2015, it required FMCSA to remove BASIC percentiles and intervention alerts from public view, until further study of potential deficiencies in the SMS data could completed and corrections made if necessary. Certain motor carrier groups believe that Congress’ action casts doubt as to whether FMCSA’s NPRM can proceed since its proposals are heavily intertwined with the SMS data.