Heyl Royster

FMCSA Proposed Rulemaking: Changing Safety Measurement System to Safety Fitness Determination

february 26, 2016

By: Robert Bennett, rbennett@heylroyster.com

The Federal Motor Carrier Safety Administration has proposed new rules for assessing carrier on-road safety and to enhance FMCSA's ability to identify noncompliant carriers. If adopted, the new rule would replace the SMS with "safety fitness determination," or SFD. The objectives behind the proposed SFD rule are to streamline the effectiveness of assessing carrier safety, increase the number of carriers evaluated, and require 'unfit' carriers to improve immediately or cease operations until the failures are rectified.

Highlights include:

Currently, SMS assigns three safety ratings: Satisfactory, Conditional and Unsatisfactory. The SFD assigns only the rating of Unfit, if the criteria for that rating are met.

The FMCSA has published a SFD Calculator and an accompanying User Guide, so that carriers can monitor their own status and rectify problems as they arise. These can be found at www.fmcsa.dot.gov/sfd. Carriers can use their investigation and inspection reports to determine their SFD status under the proposed rule.

The SFD is based on a calculation of number of inspections, and number of inspections with violations in the following BASICs: Unsafe Driving, HOS Compliance, Vehicle Maintenance, Hazardous Materials Compliance, and Driver Fitness. The Guide and Calculator assesses "acute" and "critical" violations. Most of the acute and critical violations assessed under the SFD relate to HM compliance, driver condition/qualifications, and carrier testing of drivers for alcohol or substances.

A carrier must have 11 or more roadside inspections in a single 24 month period with violations in any one BASIC before that carrier could be considered to have failed the BASIC. The SFD is triggered only when the condition of "11 in 24 months" occurs.

If an inspection shows 2 or more failed BASICs out of the 7 assessed, the proposed rule would impose an "Unfit" rating. A carrier can be proposed "unfit" by failing the BASICs through inspections, investigations, or both.

The SFD uses an absolute failure standard, rather than a comparison to other carriers. A carrier's SFD performance measures are not affected by other carriers' performance.

Currently, SMS would allow carriers with the "conditional" safety rating to continue operating indefinitely. The proposed SFD rule would eliminate that potential, and would require carriers found "unfit" to improve within a set time frame or cease operations until the "unfit" status is removed.

It's currently unknown what practical effects the rule will have on carriers if adopted. The intent of the rule is to allow FMCSA to conduct more inspections and streamline the evaluation process. It's important to note that this new rule would prevent carriers from operating under a "conditional" finding. Once an "unfit" determination is made, the carrier must improve in a set time period or cease operations until the problems are remedied. The proposed rule may operate to keep borderline motor carriers off the road. However, as a practical matter, the proposed rule, although designed to simplify the process, may inject more stringent and onerous compliance requirements overall.

The proposed rule was announced on January 15, 2016. FMCSA is taking comments on the proposed rule until March 16, 2016.

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