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ICYMI: New Proposed FMCSA Rule on Safety Fitness for Motor Carriers

By Brigham McCown, Chairman and CEO of Nouveau

The Federal Motor Carrier Safety Administration (FMCSA) recently proposed a rulemaking to amend the current methodology for issuance of a safety fitness determination (SFD) for motor carriers. The goal is to more effectively use FMCSA data and resources to identify unfit motor carriers and to remove them from the Nation’s roadways.

Currently, FMCSA must first conduct a safety audit of a motor carrier’s operations and then issue an SFD. If the motor carrier receives an “unsatisfactory” safety rating, FMCSA will declare the motor carrier unfit to operate. Under this approach, FMCSA is only able to investigate 15,000 motor carriers annually. The proposed rule, however, will permit FMCSA to assess the safety fitness of approximately 75,000 companies each month.

The new rule allows FMCSA to consider on-road safety data in the Motor Carrier Management Information System (MCMIS), along with, and sometimes instead of, the current Behavior Analysis and Safety Improvement Categories (BASIC). Additionally, the proposed rule would eliminate the 3-tier rating system (i.e., satisfactory–conditional– unsatisfactory) for determining safety fitness in favor of a single determination of unfit.

A motor carrier would be deemed unfit under the proposed rule 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 each, in a single BASIC, before a carrier could fail the BASICs;

(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.

After a proposed unfit SFD, a motor carrier would have three different administrative proceedings available:

(1) A review for material errors in assigning a proposed unfit SFD;

(2) A review claiming unconsidered on-road performance inspection data;

(3) A review after a request to operate under a compliance agreement

The central differences between the current rule and the proposed rule are as follows:

First, the intervention thresholds of the current rule are much lower than the proposed rule. Second, under the current rule, a motor carrier’s score is based on percentiles and can be impacted by other motor carriers’ performance; under the proposed rule, a motor carrier’s score would be based on fixed performance measures and can be impacted only by a carrier’s own inspections and investigations. Third, crash preventability will be determined before any crash is used to propose an unfit determination. Finally, FMCSA has proposed different critical and acute violations based on an analysis of crash rates of motor carriers in combination with violations of the existing list of critical and acute regulations. The FMCSA found the refined list of critical and acute regulations was a stronger indicator of a motor carrier’s crash risk.

The FMCSA estimates the assessment of 3,056 unfit motor carriers a year under the new SFD process, nearly triple the number of proposed unfit SFD’s under the current process. However, only 262 are expected to be proposed as unfit from on-road safety performance data alone.

The deadline for comments is March 21, 2016. FMCSA will allow an additional 30 days to reply to comments submitted before the March 21 deadline because the Agency believes it would be productive for commenters to be able to respond to comments received. They also believe additional comments will provide new data and information that will aid the Agency in making final decisions about the rule.

For media inquiries, please contact Emily Hanhart at ehanhart@nouveaucorp.com.

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