Notice of High Risk
Earlier this month, Notice by the FMCSA was given in the Federal Register as to the changes to the definition of a high risk motor carrier and the associated investigation procedures. The Notice asserts these new and improved changes will allow the Agency to hone their efforts on the carriers with the highest crash risks, stating “once in place, the Safety Fitness Determination (SFD) rule will permit FMCSA to assess the safety fitness of approximately 75,000 companies a month. By comparison, the agency is only able to investigate 15,000 motor carriers annually [currently] – with less than half of those companies receiving a safety rating.”
Unfortunately, the Agency’s current claims to implement a “new and improved system” that will identify the riskiest carriers trigger memories from 2010 when the FMCSA implemented the CSA with the same enthusiasm, however- whether or not the CSA lived up to its expectations is a post for another day.
Is This Goodbye?
After years of voiced dissatisfaction from lawmakers and industry members alike, the Federal Motor Carrier Safety Administration has finally proposed to amend the Federal Motor Carrier Safety Regulations (FMCSRs) to reform its current Safety Fitness Determination (SFD) rating system- the three-tiered safety rating levels of “satisfactory-conditional-unsatisfactory”, which is used to help target and monitor high risk motor carrier.
Most of you are probably familiar with this tiered rating system and have probably grumbled about at least one of its following debated flaws:
- Frequency of Review: A motor carrier is only assigned a rating following a comprehensive on-site compliance review- for some motor carriers these happen less than once a year
- Limited Range of Data: The only information used to determine rating is the data gathered during the on-site compliance review. There is no data relating to a motor carrier’s on-the-road driving used to determine the ratings.
- Inapplicable Comparison: In determining a safety rating, motor carriers are compared with other motor carriers’ “norms” who may or may not be a motor carrier that is similarly situated.
- Lack of Authority: Often times motor carriers rated “conditional” can continue to operate in limbo without being monitored or forced to take corrective actions because there is no guiding authority.
- Availability to the Public: A motor carrier with an unsatisfactory rating based on one poor investigation- and no other outside factors- will be available to the public could cause future economic harm.
Anyways, Back to High Risk
Under the FMCSA’s new definition of high risk, the current three-tiered safety rating levels will be replaced with a single SFD: unfit. To be considered unfit renders you a high risk carrier.
A passenger carrier will be classified as unfit if they have not received an onsite investigation in the previous 12 months and if for one month they are at the 90th percentile of two or more of the following BASICs-that are most related to crash risks:
- Unsafe Driving;
- Crash Indicator;
- HOS Compliance; and/or
- Vehicle Maintenance
A non-passenger carrier will be classified as unfit if they have not received an onsite investigation in the previous 18 months or if for two consecutive months they are at the 90th percentile of two or more of the above listed BASICs.
The Future of High Risk
The FMCSA has granted a 60-day extension to May 23, 2016 for comments and to June 23, 2016 for reply comments. (Here is the website if you feel like chiming in: (https://www.federalregister.gov/articles/2016/03/07/2016-04972/notification-of-changes-to-the-definition-of-a-high-risk-motor-carrier-and-associated-investigation#h-8)
We can’t forget that this is still in the Notice stage and it has yet to become an enforceable Final Rule. As far as the future of the policies currently in place stand, it is unclear at this point what will transpire. The Agency insists that they will continue to evaluate and monitor the poor performers and reprioritizing them “as needed” and also that the “new definition will not impact a carrier’s safety fitness rating, authority to operate, SMS percentiles or how the agency makes its enforcement decisions.” But, we don’t believe that is possible to predict at this point.
Emily Littlefield is an associate attorney at Roberts Perryman. Emily’s practice focuses on transportation, insurance coverage and defense.
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