Carrier Safety Determination Rule - Deadline for comments March 21, 2016 By Atlantic/Smith, Cropper & Deeley 2/29/2016 FMCSA Proposed Rule for Carrier Safety Determination OVERVIEW On Jan. 21, 2016, the Federal Motor Carrier Safety Administration (FCMSA) issued a proposed rule to restructure its motor carrier safety fitness determination (SFD) system. The SFD is used to determine whether motor carriers can safely operate commercial motor vehicles (CMVs). Unfit carriers are not allowed to operate CMVs in interstate commerce or transportation. Currently, the system rates carrier performance as “satisfactory,” “conditional” or “unsatisfactory.” The proposed system would replace these categories with a single determination of “fit” or “unfit.” The proposed rule would continue to use the current seven Behavior Analysis and Safety Improvement Categories (BASICs). ACTION STEPS The proposed rule is likely to streamline the SFD process and introduce higher and absolute fitness requirements. Carriers are encouraged to review the proposed rule carefully and to submit comments, questions and concerns to the FMCSA by March 21, 2016. Reply comments will be due by April 20, 2016. Current SFD System The FMCSA is required by law to determine whether carriers, owners and operators (carriers) are fit to operate CMVs on roadways. The SFD has grouped carrier compliance obligations into the following six categories, also known as factors: To determine a carrier’s fitness, the FMCSA collects BASIC metrics, calculates vehicle out-of-service rates, reviews crash involvement and conducts in-depth examinations. Overall compliance is calculated and rated on a point system according to the six factors, with points being assigned for acute violations and patterns of critical violations. A violation is “acute” if it requires immediate corrective action. A violation is “critical” if it is related to the motor carrier’s safety management controls. On-road safety data is also used in calculating the vehicle and crash factors. The FMCSA uses the Safety Measurement System (SMS), an automated system that measures on-road safety performance, to evaluate compliance with existing regulations. The SMS groups the data it collects from drivers and carriers into the seven BASICs: Fitness determination Factor Ratings Overall 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 A factor is “satisfactory” if it receives no points under the SFD, “conditional” if it receives one point or “unsatisfactory” if it receives two points. The FMCSA uses the ratings to determine a carrier’s overall compliance or fitness. Carrier fitness is also rated as satisfactory, conditional or unsatisfactory. This table shows how the FMCSA determines a carrier’s fitness using the ratings set for each of the carrier’s factors. Proposed SFD System The proposed SFD system replaces the current three-tier system with a single determination of whether the carrier is fit or unfit. The FMCSA will use the Motor Carrier Management Information System (MCMIS) to identify unsafe behaviors and to prioritize and select carriers for intervention, investigation and compliance review. A carrier will be deemed unfit if it does any of the following: Fails two or more BASICs. Failing two or more BASICs will be based exclusively on on-road safety data from 11 or more inspections. Carriers must show at least one violation in a single BASIC per inspection before a carrier is considered to be failing a BASIC. Has critical or acute violations that cause the carrier to fail two or more BASICs (the violations must be part of a proposed set of critical or acute regulations the FMCSA has identified through an investigation). Fails two or more BASICs based on a combination of data from inspections and investigation results. Proposed Standard Applicable BASIC 96th percentile Unsafe Driving 96th percentile Hours of Service 99th percentile Driver Fitness 99th percentile Vehicle Maintenance 99th percentile HM The FMCSA is also proposing to adopt higher compliance standards in each BASIC, as outlined in the chart below. These standards may vary by safety event group. Under the proposed standards, a motor carrier would be “unfit” if it is in the worst 4 percent of carriers with measurable data in the MCMIS for Unsafe Driving or HOS compliance or in the worst 1 percent of carriers for the Driver Fitness, Vehicle Maintenance and HM compliance BASICs. The FMCSA estimates that establishing higher fitness standards will require significantly more evidence of carrier noncompliance than the standards that the agency currently uses to prioritize carrier interventions. Disputing an “Unfit” Determination Under the proposal, a carrier wishing to dispute an “unfit” determination may request an administrative review in certain circumstances: If “material errors” were made during an SFD; If the carrier claims the SFD did not consider on-road performance inspection data; or After a request to operate under a compliance agreement. Requesting an administrative review would not automatically halt a proposed “unfit” determination. Currently, carriers have 90 days to file a petition for administrative review. The FMCSA is proposing to reduce this filing period to 15 days after a proposed “unfit” determination is issued. The FMCSA would maintain the current administrative review process. However, the agency would propose a compliance agreement similar to the current upgrade process and would allow carriers to submit missing inspection data. Why is the FMCSA proposing a change? The FMCSA has presented several justifications for restructuring the SFD system. These reasons include using more comprehensive inspection data, more accurately reviewing current compliance without regarding outdated historical data, providing more meaningful information on a carrier’s compliance to the public and using resources more efficiently (allowing more inspections to be conducted). The proposed system would also address the issue of motor carriers being able to operate indefinitely with a “conditional” rating, even with safety violations in multiple areas. Finally, the change would implement two recommendations by the National Transportation Safety Board (NTSB) regarding carrier safety ratings.