January 19, 2017

Is the Proposed Safety Fitness Determination Rule in Jeopardy?

Holland & Knight Alert
Lawrence J. Hamilton II

The Federal Motor Carrier Safety Administration (FMCSA) published a notice of proposed rulemaking (NPRM) in the Federal Register on Jan. 21, 2016, designed to enhance the agency's ability to identify non-compliant motor carriers. The proposed Safety Fitness Determination (SFD) rule would replace the current three-tier federal rating system with a single determination of "unfit." The current rating of "satisfactory-conditional-unsatisfactory" for federally regulated commercial motor carriers has been in place since 1982. An "unfit" rating would require the carrier to either improve its operations or cease operations.

The SFD rule under consideration would update FMCSA's safety fitness rating methodology by integrating on-road safety data from inspections, carrier investigations and crash reports, to determine a motor carrier's overall safety fitness on a monthly basis. The new rule has not yet been promulgated. However, as proposed, there are three ways a carrier could be found unfit:  

  1. a motor carrier could fail two or more Behavior Analysis and Safety Improvement Categories (BASICs) based on an absolute or fixed measure of on-road safety performance data from inspections
  2. a motor carrier could have enough violations of the revised set of critical and acute regulations, identified through an investigation, to cause the motor carrier to fail two or more BASICs
  3. a motor carrier could fail two or more BASICs based on a combination of data from on-road safety data and investigation results

The SFD rule would use Compliance, Safety, Accountability (CSA) data to classify the most at-risk carriers as "unfit" rather than continue with the three-tier system. CSA is the FMCSA's safety compliance and enforcement program that uses Safety Measurement System (SMS) data to analyze carrier safety broken down into the seven categories. The BASICs include unsafe driving, hours-of-service compliance, driver fitness, controlled substances/alcohol, vehicle maintenance, hazardous materials compliance and crash indicator. Opponents of the SFD rule argue that the underlying SMS data is inaccurate and skewed by disparate enforcement among the states. Opponents also contend that the rule does not predict crashes by individual carriers.

The FMCSA is working to complete a study to demonstrate the relationship between CSA data and crash risk. This action was mandated by Congress through the Fixing America's Surface Transportation (FAST) Act (Pub. L. No. 114-94), which was signed by President Obama on Dec. 4, 2015. The legislation is based on the House-Senate conference committee report on H.R. 22, which reconciled the Surface Transportation Reauthorization and Reform (STRR) Act of 2015, passed in the House of Representatives in October 2015, with the Developing a Reliable and Innovative Vision for the Economy (DRIVE) Act, passed by the Senate in July 2015.

There has been widespread opposition to the proposed SFD rule – and use of CSA data, generally – within the trucking industry. Opponents have argued that it would undermine the FAST Act, which instructed the FMCSA to cease publicly posting the percentile scores of individual trucking companies pending conclusion of the study of CSA data. Opposition to the proposed rule will be the subject of intense lobbying to convince the Trump Administration and Congress that these regulations are unwarranted. Assuming a SFD rule is passed, a legal challenge is expected.

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