On January 21st of this year, the Federal Motor Carrier Safety Association (FMCSA) published their proposal for a new rule, called the Safety Fitness Determination (SFD), that would change the way it rates carriers and determines their overall safety fitness to operate. First announced on January 15, the rule has been in the works since early 2007, if approved it would enhance the agency’s ability to identify non-compliant motor carriers.
“Ensuring that motor carriers are operating safely on our nation’s roadways is one of our highest priorities,” said U.S. Transportation Secretary Anthony Foxx. “Using all available information to achieve more timely assessments will allow us to better identify unsafe companies and get them off the road.”
This rule will replace the current three-tier federal rating system, in place since 1982, which labels carriers as satisfactory, conditional or unsatisfactory with a single determination of “unfit.” Carriers labeled unfit will be required to either improve or cease their operations. The rule updates FMCSA’s safety fitness rating methodology by integrating on-road safety data from inspections, along with the results of carrier investigations and crash reports to determine a motor carrier’s overall safety fitness on a monthly basis.
“This update to our methodology will help the agency focus on carriers with a higher crash risk,” said FMCSA Acting Administrator Scott Darling. “Carriers that we identify as unfit to operate will be removed from our roadways until they improve.”
The proposed rule will determine whether or not a carrier is unfit to be operating commercial motor vehicles in or affecting interstate commerce based on the following three factors: The carrier’s performance in relation to a fixed failure threshold established in the rule for five of the agency’s Behavior Analysis and Safety Improvement Categories (BASICs), investigation results, and a combination of on-road safety data and investigation information.
This update to their methodology will further incorporate rigorous data sufficiency standards and will require a significant, documented pattern of non-compliance for a carrier to fail a BASIC. In order for a carrier to become eligible to be identified as “unfit” they must have had a minimum of 11 inspections with violations in a single BASIC within a two-year period.
“Ensuring that motor carriers are operating safely on our nation’s roadways is one of our highest priorities”
Under the current system, ratings are only given to carriers after completing a compliance review, which seldom happens more than once a year. The FMCSA is only able to investigate 15,000 motor carriers per year with the current system, but with the new SFD rule in place, they’ll be able to assess the safety fitness of approximately 75,000 companies per month. The FCMSA estimates that less than 300 motor carriers each year would be deemed “unfit” based solely on their number of on-road safety violations. Analysis from the agency has shown that carriers identified through this on-road safety data have crash rates nearly four times the national average.
The FMCSA has allotted 60 days for the public to submit their comments and evidentiary materials to the docket and an additional 30 days following that, which will allow commenters to respond to initial comments. However, some groups in the industry have been voicing their opinion on this proposed rule since before the FMCSA even published it in the Federal Register.
Two days before the FMCSA released their Advanced Notice of Proposed Rulemaking, a coalition of groups, including the National Association of Small Trucking Companies, Western States Trucking Association, the ASECTT group and five others, wrote to Congress claiming that the rule the FMCSA would soon announce went directly against provisions in the Fixing Americas Surface Transportation (FAST) Act passed last December.
There are two provisions of the FAST act that the coalition claims the SFD is disregarding. The first states that regulatory impact analysis concerning proposed or final major rules must consider the impact on different segments of the motor carrier industry and on carriers of various sizes. Many are worried that the proposal to set different failure thresholds for carriers based on exposure, sets a different safety bar for small and large carriers.
“A ‘quickie’ rulemaking on SFD criteria, in which any aspects of the agency’s flawed SMS methodology would be treated as a given and small-business impacts would be ignored, is patently not what Congress intended in the FAST Act,” stated in a letter from the coalition.
The second provision required the National Research Council of the National Academies to conduct a study on eleven topics relating to CSA, SMS, and the BASICs. The study was to be completed within 18 months of the enactment of the FAST Act with the FMCSA submitting a corrective action plan to address any issues found before implementing a new rulemaking procedure. That report has yet to be finished or submitted to FMCSA for review. Therefore, basing any safety fitness determination on roadside compliance and crash statistics developed for use in the SMS/CSA methodology is outlawed – with good reason. According to the coalition, these statistics have already been proven to be untrustworthy.
A 2014 report from the Government Accountability Office (GAO) found that of the 750 different types of violations in the FMCSA system, only two had sufficient data to establish a substantial and statistically reliable relationship with crash risk. Over the past decade, Congress and the GAO have repeatedly cited the SMS program for data sufficiency problems. These include compliance and enforcement anomalies between States, the lack of sufficient roadside data to measure 90 percent of the regulated carries, the inability to determine crash preventability in assessing carrier safety performance, and the inherent instability of SFDs for small carriers based on monthly changes in their on-road safety performance data.
As the weeks have gone by, the coalition has continued to voice their rule oppositions to Congress. However, despite the push back, the FMCSA has continued to move forward with their plan. Most recently, in accordance with federal regulatory policy, the agency notified the National Governors Association that the proposal “may impact some State laws, regulations or regulatory activity.”
The FMCSA is still hearing public comments on the rule, and will continue to do so until March 21, with the following 30 days reserved for commenters to respond to the initial comments. It seems that only time will tell how much of an impact those comments will have on the final rule, so far the coalition shows no signs of slowing down and will likely not stop petitioning Congress until real change is made.