DOT Proposes New Safety Fitness Standards

The Federal Motor Carrier Safety Administration (FMCSA) has stated that its proposed rule to revise its Safety Fitness Determination procedures for motor carriers (which includes all GAWDA members operating truck fleets) would allow the agency to assess approximately 75,000 carriers a month. By comparison, the FMCSA states it is currently able to investigate only 15,000 motor carriers annually — with fewer than half of those companies receiving a safety fitness rating.

The major changes proposed for the safety fitness determination methodology include:

  • There would no longer be three safety ratings: satisfactory, conditional or unsatisfactory. Rather, there would only be one safety rating: “unfit.”
  • Companies would be assessed monthly, using fixed failure measures that are identified in the proposal. Stricter standards would be used for those Behavior Analysis and Safety Improvement Categories (BASICs) with a higher correlation to crash risk: Unsafe Driving and Hours of Service Compliance.
  • Violations of a revised list of “critical” and “acute” safety regulations would result in failing a BASIC.
  • All investigation results would be used, not just from comprehensive on-site reviews.

A company 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 one or more violations in a single BASIC; (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.

Under the proposal, to assess roadside inspection data results the agency would require a minimum of 11 inspections with violations in a single BASIC within a 24-month period before a motor carrier could be eligible to be identified as “unfit.” If a carrier’s individual performance meets or exceeds the failure standards in the rule, it would then fail that BASIC.

Unlike the current Safety Management System approach, the failure standard would be fixed by the rule as an absolute rather than relative standard, i.e., a carrier’s status in relation to that fixed measure would not be affected by other carriers’ performance (such as on a percentile basis). A safety fitness rating would only be impacted by a carrier’s own inspections and investigations.

Failure of a BASIC based on either crash data or compliance with drug and alcohol requirements would only occur following a comprehensive investigation.

Additionally, in the proposed rule the FMCSA seeks input on whether hazardous materials carriers should be held to a more stringent standard (i.e., lower BASIC failure standards) than the overall motor carrier population, as hazmat carriers have lower intervention thresholds under the current Safety Measurement System (SMS). The FMCSA is also specifically interested in feedback on whether the failure standard should be different for carriers that hold Hazardous Materials Safety Permits.

The FMCSA is going forward with this proposed rule despite recent directives from Congress to reform the Compliance, Safety, Accountability (CSA) program. In the FAST Act, Congress required the FMCSA to commission a study by the National Research Council on the CSA program and its Safety Measurement System. The study must analyze the accuracy of the BASIC scores in identifying high-risk carriers and predicting or correlating with future crash risk, crash severity, or other safety indicators for motor carriers, including the highest risk carriers.

The study must also analyze the methodology used to calculate BASIC percentiles and identify carriers for enforcement, including the weights assigned to particular violations and the tie between crash risk and specific regulatory violations in accurately identifying and predicting future crash risk for motor carriers.

The study must also look at gaps in data collection, alternatives to SMS scores, and the use of SMS alerts and scores by the public. This study and a report to Congress must be completed by May 2017. After the report is issued, the FMCSA will have 120 days to publish a corrective action plan to address the issues raised in the report and in the prior reports on CSA published by the Government Accountability Office and the DOT Inspector General.
Under the FAST Act, information regarding alerts and the relative percentile for each BASIC developed under the CSA program may not be used for safety fitness determinations until the DOT Inspector General certifies that the CSA reform report is submitted to Congress, the FMCSA’s corrective action plan is published and implemented, and all CSA issues have been resolved.

But because the proposed Safety Fitness Determination (SFD) rule would be based on absolute standards rather than percentile scores that are relative to other carriers’ performance, the FMCSA asserts that the proposed rule is not precluded by the CSA study and reforms mandated in the FAST Act.

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Meet the Author
GAWDA’s Government Affairs and Human Resources Legal Consultant Rick Schweitzer is president of Richard P. Schweitzer, PLLC in Washington, D.C. He is also GAWDA’s general counsel. Members can reach him at 202-223-3040 and rpschweitzer@rpslegal.com.