Federal trucking regulators are seeking public comment on a proposal to modify the current three-tier safety motor carrier fitness rating structure, including a review of data and other resources available for helping determine a carrier’s fitness to operate.
The new Federal Motor Carrier Safety Administration’s advance notice of proposed rulemaking, posted in the Federal Register on Aug. 29, could allow the agency to scrap or modify the current way it evaluates motor carrier fitness, and perhaps even develop a new method that could incorporate the agency’s Compliance, Safety, Accountability Safety Measurement System.
Safety fitness determinations are currently based on an analysis of existing motor carrier data, data collected during an investigation, and a compliance review, conducted at a carrier’s place of business and/or remotely through a review of its records using a secure portal.
The existing determination process includes calculations of a carrier’s vehicle out-of-service rate, reviews crash involvement, and conducts an in-depth examination of the motor carrier’s compliance with “acute” and “critical” regulations.
Acute regulations are those where noncompliance is so severe as to require immediate corrective action, regardless of the overall safety management controls of the motor carrier. Critical regulations are related to management or operational systems controls.
FMCSA said comments on the ANPRM must be received on or before Oct. 30.
“This is the first step in answering several questions, including do we even need a new safety determination rulemaking,” said Dan Horvath, vice president of safety policy for American Trucking Associations. “Overall, I’d say this is taking a broad step in asking a number of questions from carriers and getting their input. I think it’s definitely worth discussion.
“But if CSA is to be included, my gut tells me probably a lot of folks will say no, because it’s flawed data.”
Wiseman
Transportation attorney Brandon Wiseman, owner of Trucksafe Consulting, a regulatory compliance consulting and training company, believes FMCSA is considering changes to the fitness rating system because the agency is short-staffed and unable to go out and audit motor carriers in large numbers. Since the coronavirus pandemic in 2020, FMCSA also has been conducting some audits using technology to avoid having to do carrier on-site visits.
The agency proposed a similar fitness determination method in 2016 that was withdrawn after it was met with widespread opposition from the industry — largely due to a lack of faith in the CSA rating system, according to Wiseman.
“So now they’re looking for ways to get a bigger universe of carriers to assess for safety fitness,” Wiseman said. “They believe that the way they should do that is to potentially tie in motor carrier safety ratings to CSA scores. In the 2016 proposal, the industry was up in arms due to concerns about CSA that they’ve had over the years.”
There was opposition to the 2016 proposal from several dozen truck and bus organizations, including ATA.
“ATA has long supported using data to target enforcement activities against bad actors in our industry,” ATA President Chris Spear said at the time. “However, numerous reviews have shown flaws in the data and in the CSA system, so it makes sense to withdraw this rule, which would have used CSA data to create publicly available fitness ratings.”
FMCSA admits that one of the challenges with the current system is that the agency annually assigns determinations to a small number of carriers. In fiscal year 2019, for example, roughly only 2% of the estimated 567,000 carriers were issued safety determinations.
In recent years, a carrier typically has been eligible for an off-site audit when it has high scores in one or two Compliance, Safety, Accountability safety categories, known as Behavior Analysis and Safety Improvement Categories. However, in 2018, the agency said the new process would be restricted to less-serious carrier problems and would not be allowed in the case of maintenance BASIC violations.
FMCSA said it primarily is requesting comments on the new ANPRM related to questions, including:
- Should FMCSA retain the current three-tiered rating system of Satisfactory, Unsatisfactory and Conditional?
- How will states be affected if the agency changes the safety fitness determination?
- The current safety fitness determination does not use all available safety data, such as all inspection-based data. Should the SMS methodology be used to issue determinations in a manner similar to what was proposed in the 2016 NPRM?
- Given the importance of driver behavior in preventing crashes, how would you recommend the agency incorporate driver behavior data into the safety fitness determination?
- Given that unsafe driving behaviors, such as speeding and texting while driving, are highly correlated with crash risk, should the safety fitness rating methodology give more weight to unsafe driving violations?
