The FMCSA is asking for comments to help it develop a new way to determine when a carrier is not fit to operate commercial motor vehicles, also known as a safety fitness determination (SFD). In an advance notice of proposed rulemaking, FMCSA is asking for the public to comment on the need to revise the current safety fitness determination process and give feedback on FMCSA’s current safety fitness determination regulations, the available data and costs for regulatory alternatives likely to be considered as part of this rulemaking, and responses to specific questions.
Safety Fitness Determinations are currently determined based on an analysis of existing carrier data and data collected during an investigation. It analyzes six factors based on the Federal Motor Carrier Safety Regulations (FMCSRs) and Hazardous Materials Regulations: general, driver, operational, vehicle, hazmat, and accident factors (recordable accident rate per million miles). FMCSA calculates a vehicle out-of-service rate, reviews crashes, and conducts an in-depth examination of the carrier’s compliance with the acute and critical regulations of the FMCSRs and HMRs. “Acute regulations” are those where no compliance is so severe as to require immediate corrective action, regardless of the overall safety management controls of the motor carrier.
One of the criticisms of this process is that it is resource intensive and reaches only a small percentage of carriers. The agency has long hoped to link its Compliance, Safety, Accountability (CSA) program and its Safety Measurement System (SMS) to the fitness reviews. The SMS is FMCSA’s prioritization system to identify carriers for investigation, which went into effect in 2010. In 2016 FMCSA proposed using a carrier’s absolute measure, but not its relative percentile ranking, in SMS to generate unfit safety fitness determinations. The idea was to more effectively use FMCSA data and resources to identify unfit carriers and remove them from the road, expanding the number of rated carriers.
That proposal also looked at eliminating the current rating terms of Satisfactory, Unsatisfactory, and Conditional, and using a single determination of Unfit. The agency noted that a carrier getting a Satisfactory rating may be misconstrued as an FMCSA approval of the current operations of a motor carrier, when instead, it reflects FMCSA’s evaluation of a motor carrier’s operations at the time of the investigation. And under the current process, a carrier with a Conditional rating is not prohibited from operating, even if a review reveals many breakdowns in safety management controls. Carriers opposed that proposal, saying there were problems with the SMS data that needed to be fixed before it could be used in that manner. And, they said, it violated the Fixing America’s Surface Transportation (FAST) Act. In 2017, FMCSA withdrew the 2016 proposed rule but left the door open to revisiting it in the future.
The FAST Act required the National Academy of Sciences (NAS) to conduct an independent study of SMS. The NAS report, issued in 2017, did find shortcomings. Its main recommendation was that FMCSA develop a complex statistical model known as item response theory (IRT). It was believed this system would better measure a carrier’s overall safety culture, rather than the current snapshot-in-time approach for determinations now.
While initially expressing optimism about the potential for the item response theory model, after developing and testing an IRT model, FMCSA concluded that IRT modeling did not perform well for use in identifying motor carriers for safety interventions. Instead, last year it issued a proposal to revamp the current CSA and SMS models. Those proposed improvements include reorganizing the BASICs to better identify specific safety problems, combining violations in SMS into groups, simplifying violation and crash severity weights, removing percentile jumps that occur when carriers move into a new safety group, and adjusting the intervention thresholds. FMCSA specifically requests responses to the following 12 questions regarding how it does safety fitness determinations:
1) Should FMCSA retain the current three-tiered rating system of Satisfactory, Unsatisfactory, and Conditional?
2) Should FMCSA include additional hazmat regulatory requirements in the SFD calculation?
3) Currently, the table of regulatory factors excludes parts 172 and 173, however there are violations in these parts included in the list of critical and acute violations in Appendix B. Should they be included in the SFD calculations?
4) Should motor carriers of passengers be subject to higher standards than other carriers?
5) Is there a specific aspect of safety such as driver training, driver fatigue management and mitigation, vehicular maintenance and repair, etc., that is so fundamentally different in passenger transportation from freight that FMCSA’s safety fitness rating methodology should take this aspect into consideration?
6) How will states be affected? What resources might be needed to accommodate any changes, and how long would it take to make these proposed changes?
7) The current SFD does not use all available safety data. Should the SMS methodology be used to issue SFDs, in a manner similar to what was proposed in 2016? If so, what adjustments should be made to that proposal? If not, should the agency include more safety data in the SFD process in other ways and, if so, how?
8) Given the importance of driver behavior in preventing crashes, how would you recommend the agency incorporate driver behavior data into the SFD process?
9) What changes, additions, or deletions, from the current list of critical and acute violations should be included?
10) Should SFD consider carriers’ adoption and use of safety technologies in a carrier’s rating? How should this fit into the SFD methodology?
11) Should the agency revise the current administrative review procedures?
12) Given that unsafe driving behaviors such as speeding and texting while driving are highly correlated with crash risk, should those violations have more weight in SFD?
Trucksafe Consulting, in a blog post, called the proposal concerning for many reasons. “Many studies over the years have demonstrated significant flaws with SMS, flaws which we do not feel the agency adequately addressed in its recently proposed SMS revisions,” wrote transportation attorney Brandon Wiseman. “SMS as currently structured (and even with the proposed changes) offers carriers no meaningful due process to contest or appeal erroneous violations or data that weigh on their scores. Thus, it’s conceivable a carrier’s safety rating (and ability to operate) could be threatened by incorrect violations or other problematic data, with no real way for the carrier to address it before receiving an Unfit rating.”
Comments on this notice must be received on or before 60 days after date of publication in the Federal Register, referring to docket number FMCSA-2022-0003. Here is a chance to make your voice heard! Got questions? Call us (800) 805-0040.