The FMCSA has a Safety Fitness Determination Rule (SFD) per mandate by Congress, but the question becomes whether the proposed system is any more effective –or less ineffective – than the old system? Is this proposal a step in the right direction or just more of the same smoke-and-mirrors as the old version? According to the CCJ, the FMCSA safety rating methodology will update on a monthly basis and will integrate data from inspections, carrier investigations, and crash reports to culminate into a carrier safety fitness rating. The SFD rule would replace the current “Satisfactory, Conditional, and Unsatisfactory” rating system with a single determination of “unfit.” An “unfit” carrier would have to improve or shut down operations, with proscriptions of returning until the maladies are mitigated. From the mists, the FMCSA further boasts a yet uncharted ability to assess the safety fitness of 75, 000 carriers a month, up from its current record of 15,000 carriers per year. Of those 15,0000, less than half receive a safety rating.

The data sources are going to be investigation results and roadside inspection/violation data as compiled and measured by the CSA Safety Measurement System in five of its seven BASICS: Hours of Service Compliance, Driver Fitness, Unsafe Driving, Vehicle Maintenance, and Hazardous Materials. The proposal excludes consideration of the Crash Indicator and the Substances/Alcohol categories. The proposed methodology uses a standard of violations in a single BASIC within a 24 month period, using a minimum of 11 inspections. If the carrier’s performance meets or exceeds the failure standard, then it fails that BASIC. A failure in any of the two BASICS will result in an unfit rating. Until a carrier fails one BASIC, it cannot be considered “unfit.” This “failure standard” will become fixed, and so one carrier’s performance will not be compared to other carriers’ performance, in contrast with the current CSA SMS. As of now, the CSA Safety Measurement System website has been restored, albeit missing the percentile scores, measures, and indications of whether a carrier’s BASICs are in alert status.

Critics argue that the new system violates the FAST Act by using the same roadside compliance data and crash statistics data that created the cause of concern from Congress. Specifically, this information simply fails to predict how safe a carrier is in relation to how safe the carrier should be. In a 2014 Government Accountability Office Report, of the 750 different types of violations in the FMCSA system, only two had sufficient data to establish a substantial and statistically reliable relationship with crash risk. Further, the fear that the different “failure thresholds” for carriers based on exposure would set different safety bars for small and large carriers. From a litigation standpoint, using data that has not been shown to correlate to a carrier’s safety creates a dangerous inference of carrier ineptitude that could be difficult to overcome.  So, what is the answer? That’s a million dollar question, but I believe that returning to the drawing board and staying there until the smoke clears may be the best recourse.

This article was written by Lesley Hall, JD, MBA, associate attorney at Roberts Perryman PC. Lesley focuses her practice on Transportation and Logistics as well as Trucking Litigation. Additionally, Lesley is third generation of a trucking family.

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com