Updated: Sep 5
The Federal Motor Carrier Safety Administration (FMCSA) is once again contemplating significant changes to its Safety Fitness Determinations, commonly known as "safety ratings," according to an Advanced Notice of Proposed Rulemaking (ANPRM) published on August 29, 2023. According to its notice, "FMCSA is interested in developing a new methodology to determine when a motor carrier is not fit to operate commercial motor vehicles (CMVs) in or affecting interstate commerce."
How exactly the agency intends to do so is not yet clear, but for now, it is seeking public comment on: (1) the need for a rulemaking to revise the regulations prescribing the safety fitness determination process; (2) the available science or technical information to analyze regulatory alternatives for determining the safety fitness of motor carriers; (3) feedback on the agency’s current safety fitness determination regulations, including the process and impacts; (4) the available data and costs for regulatory alternatives reasonably likely to be considered as part of this rulemaking; and (5) responses to specific questions raised in the notice.
Existing Safety Rating Methodology
As addressed in our other articles, The FMCSA currently determines a carrier's safety rating in accordance with the detailed safety rating methodology contained in Appendix B to 49 C.F.R. Part 385. Under those regulations, FMCSA only issues safety ratings to carriers that have undergone a comprehensive on- or offsite compliance investigation. These investigations are conducted by either the FMCSA or one of its state enforcement partners. Motor carriers are prioritized for these audits based, in part, on their roadside performance relative to their peers through the system known as the Safety Measurement System (SMS) (also known as "CSA scores"). Carriers with relatively high SMS scores in one or more of the seven measured categories are at an increased risk of an FMCSA audit.
Once a carrier is selected for a comprehensive investigation, the investigator evaluates and rates the carrier's compliance in six broad factor areas: (1) general compliance (parts 387 and 390 of the FMCSRs); (2) driver (parts 382, 383, and 391 of the FMCSRs); (3) operational/HOS (parts 392 and 395 of the FMCSRs); (4) vehicle (parts 393 and 396 of the FMCSRs); (5) hazardous materials (part 397 of the FMCSRs and parts 171, 177, and 180 of the HMRs); and (6) accidents (based on the carrier's calculated accident rate).
Each individual factor rating depends on the number of "acute" and/or "critical" violations that the investigator uncovers within those factors. "Acute" regulations are those identified as such where noncompliance is so severe as to require immediate corrective actions by a motor carrier regardless of the overall safety posture of the motor carrier. An example is allowing a driver to operate a commercial motor vehicle after having test positive for drugs or alcohol. "Critical" regulations are those identified as such where noncompliance relates to management and/or operational controls. These are indicative of breakdowns in a carrier's management controls. Whereas a single violation of an acute regulation has the potential to negatively impact a carrier's factor rating, violations of critical regulations require a violation rate of at least 10% of the files checked in order to impact the carrier's ratings. An example is a violation of the 11-hour driving rule. If, for example, an investigator reviews 30 days' worth of driver logs for 2 drivers during the audit (i.e., a total of 60 logs) and discovers 6 11-hour violations, this would amount to a critical violation since 10% of the files checked had that same violation. Click here to download an up-to-date list of all "acute" and "critical" regulations.
Once the investigator completes the audit, he/she will tally the number of acute and/or critical violations in each of the six factor areas. One acute or critical violation in any of the factors will result in a conditional rating in that factor (except in the HOS factor, where acute and critical violations are double-weighted and thus result in an automatic unsatisfactory factor rating). Two or more acute or critical violations in any factor will result in an unsatisfactory rating in that factor. And once all factors are tallied, the agency uses the following chart to determine the carrier's overall proposed safety rating:
Less-than-Satisfactory safety ratings are considered "proposed" (as opposed to final) for a certain period of time following a compliance review. For general commodity carriers, the rating will remain proposed for a period of 60 days. For hazmat carriers, the rating is proposed for 45 days. Once the applicable time period expires, the rating will become final, assuming the carrier hasn't successfully upgraded the rating in the interim.
2016 Proposed Changes
In 2016, the FMCSA issued a Notice of Proposed Rulemaking that would have substantially changed the way motor carriers receive safety ratings. According to that proposal, “[t]he intended effect of this action [was] to more effectively use FMCSA data and resources to identify unfit motor carriers and to remove them from the Nation’s roadways.” 81 Fed. Reg. 3,562 (Jan. 21, 2016).
Under the proposed revised methodology, the agency would have done away with its existing three-tier safety rating system in favor of a single determination of “unfit.” And no longer would safety ratings stem solely from the agency’s on-site, comprehensive investigations. Instead, carriers that “fail” two or more BASICs in the SMS system in any given month, either through on-road safety data, agency investigations, or a combination of the two, would have received a proposed unfit rating, which, unless resolved through an administrative appeal or upgrade request, would have become final and prohibited those carriers from operating in interstate or intrastate commerce within 45-60 days.
With regard to determining whether a carrier has failed a BASIC using on-road safety data, the agency had proposed to measure carriers’ safety performance against so-called “absolute failure standards” rather than the existing intervention thresholds it uses to target carriers for enforcement action. According to the 2016 NPRM, “the failure standards for a proposed unfit SFD would require significantly more evidence of non-compliance than the thresholds in SMS . . . .” 81 Fed. Reg. 3,563 (Jan. 21, 2016). A carrier whose performance in any of the BASICs—except Crash Indicator and Controlled Substances/Alcohol Compliance, which would have only be evaluated during agency investigations—exceeded the absolute failure standards in a given month would have failed those BASICs, subjecting it to a proposed unfit rating.
In sum, the 2016 NPRM, had it been adopted, would have tied a carrier's safety rating to its SMS scores. Unsurprisingly, that proposal was widely derided in the industry, receiving several hundred comments, many of them in opposition. One such comment lamented:
Here, the FMCSA issued the NPRM, which undeniably is likely to lead to the promulgation of a major rule, without first issuing an ANPRM or negotiated rulemaking. It attempts to justify its action by claiming an ANPRM is unnecessary because the proposed rule is a product of “over 10 years” of development and “thousands of Federal employee and contractor hours and millions of taxpayer dollars.” 81 Fed. Reg. 3,598-99 (Jan. 21, 2016). What the agency fails to consider, however, is that those years’ worth of development and millions of taxpayer dollars came before the CSA program was proven to be severely flawed and practically worthless in assessing carriers’ relative safety. Whatever work was done on the various components of this rule over the past decade has absolutely no bearing on the big-picture issue of whether a carrier’s safety rating—its regulatory lifeblood—can or should be tied to data proven to be inconsistent, inaccurate, and untrustworthy. That issue seems like a particularly suitable subject to address through an ANPRM.
Ultimately, the FMCSA elected not to persist with the NPRM, leaving in place its existing three-tier safety rating system.
February 2023 Changes to SMS
The FMCSA first implemented SMS in 2010, as part of the broader Compliance, Safety, Accountability (CSA) program. As we've discussed in other articles, the agency and its state partners rely on SMS to identify high risk motor carriers and prioritize them for enforcement. Through SMS, carriers are scored in seven categories known as BASICs, based on violations discovered during roadside inspections and in compliance reviews. Carriers receive percentile scores in each of the BASICs, indicating how they are performing relative to their peers. This have come to be known as CSA scores.
In 2017, the U.S. Congress demanded FMCSA commission an independent study of SMS in light of heavy criticism of the system over the years. The agency engaged the National Academy of Sciences (NAS) to conduct that study, which it completed that year. NAS ultimately concluded that SMS, in its current form, "is structured in a reasonable way and its method of identifying motor carriers for alert status is defensible.” However, it went on to make a handful or recommendations to the FMCSA, including that it consider adopting a better statistical model as the backbone of the system. The recommended model, used in many other industries, is known as the Item Response Theory or IRT.
Ultimately, FMCSA rejected the IRT model, but more recently, proposed fairly significant changes to its SMS methodology. We described these changes in detail in this article. As of August 2023, the FMCSA has yet to implement these changes. But as we observed when they were first proposed, "we're concerned the FMCSA may be under the impression that its proposed changes to SMS are sufficient to rectify the many problems that have plagued SMS over the years, such that it may seek to once again tie a motor carrier's safety rating to these scores."
August 2023 SFD ANPRM
As we predicted, the FMCSA is once again contemplating utilizing CSA scores to assign safety fitness determinations to motor carriers. In its ANPRM, the agency explains:
This ANPRM does not make any specific proposals but asks for input on the potential use of the SMS methodology to issue SFDs in a manner similar to the 2016 FMCSA proposed rule. To inform that input, FMCSA provides an update on its work related to SMS here and in the Agency’s Federal Register notice titled, “New Carrier Safety Assessment System,” which was published at 88 FR 9954 (February 15, 2023).
More specifically, the FMCSA "seeks input regarding new methodologies that would determine when a motor carrier is not fit to operate CMVs in or affecting interstate commerce. The intended effect of this action is to more effectively use FMCSA data and resources to identify unfit motor carriers and to remove them from the Nation’s roadways. A successful SFD methodology may: target metrics that are most directly connected to safety outcomes; provide for accurate identification of unsafe motor carriers; and incentivize the adoption of safety-improving practices."
In particular, the agency is asking the public to weigh in on the following questions:
Should FMCSA retain the current three-tiered rating system of Satisfactory, Unsatisfactory, and Conditional? Why or why not?
In the 2016 NPRM, FMCSA proposed replacing the three-tiered structure with a single rating of Unfit. Under such a structure, carriers that completed safety fitness reviews successfully would continue operating and not appear different, in terms of their SFD, from carriers that had not yet been reviewed. Would this approach be sufficient to ensure safety? Please explain your views.
What are the costs and/or benefits to a motor carrier associated with each current possible rating? Please provide data or information relating to the costs and/or benefits for motor carriers who are issued final ratings for each of the ratings listed here: Unsatisfactory rating (Unfit); Conditional rating; Satisfactory rating
Should FMCSA include additional HM regulatory requirements in Appendix B to Part 385 (Explanation of Safety Rating Process) in the SFD calculation?
Currently, the table of regulatory factors in Appendix B to Part 385 (at II(C)(b)) 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?
Should motor carriers of passengers be subject to higher standards than other motor carriers in terms of safety fitness rating methodology? If yes, what should these higher safety standards or thresholds be, and why are they appropriate? If no, why not?
Is there a specific aspect of safety management, such as driver training, driver fatigue management and mitigation, vehicular maintenance and repair, etc., that is so fundamentally different in passenger transportation, relative to CMVs transporting property, that FMCSA’s safety fitness rating methodology should take this aspect into special consideration? If yes, what is this specific aspect of safety management, and how do you recommend FMCSA handle the matter within its safety fitness rating methodology? If no, why are the safety management aspects the same?
How will States be affected if the Agency changes the SFD? What resources might be needed to accommodate any changes, and how long would it take to incorporate any proposed changes?
The current SFD does not use all available safety data, such as all inspection-based data. Should the SMS methodology be used to issue SFDs, in a manner similar to what was proposed in the 2016 NPRM? If so, what adjustments, if any, 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? The Agency is interested in comments specifically on whether the integration of on-road safety data into the SFD process would improve the assessment of motor carriers’ safety posture and the identification of unfit motor carriers.
Given the importance of driver behavior in preventing crashes, how would you recommend the Agency incorporate driver behavior data into the SFD? What data should the agency use? How should this methodology distinguish between data resulting in a conviction and data without a conviction?
What changes, additions, or deletions, from the current list of critical and acute violations should be included in the NPRM, and why? Should the list be retained? Why or why not?
Should SFD consider motor carriers’ adoption and use of safety technologies in a carrier’s rating? How should this fit into the SFD methodology?
Should the Agency revise the current administrative review procedures in §§ 385.15 and 385.17(j) related to administrative review and corrective action? Which of those procedures should be changed or discarded? Please give the reasons for your views.
Given that unsafe driving behaviors, such as speeding and texting while driving, are highly correlated with crash risk, should the safety fitness rating methodology give more weight to unsafe driving violations of § 392.2? For example, each pattern of noncompliance with a critical regulation relative to Part 395, Hours of Service of Drivers, is assessed double the points in the safety fitness rating methodology. Should violations of § 392.2, or a subset of those violations, be treated in a similar manner?
In short, the FMCSA's ANPRM suggests the agency is keen on upending the current safety rating methodology and potentially leveraging its SMS to shut down carriers it deems unsafe. This proposal is concerning to us at Trucksafe 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. Significantly, SMS, as currently structured (and even with the proposed changes) offers carriers no meaningful due process to contest or appeal erroneous violations or other data that weighs on their scores. Thus, it's conceivable a carrier's safety rating (and its ability to continue to operate) could be threatened by incorrect violations or other problematic SMS data, with no real way for the carrier to address it before receiving a proposed Unfit safety rating.
Until these issues, and the many others raised in the docket of the agency's 2016 SFD rulemaking, are addressed, we cannot support this type of agency action. Carriers would be wise to file comments to this ANPRM, which is published in Docket No. FMCSA-2022-0003, by October 30, 2023. The comment period will initially be open through October 2023. If you have questions about this notice or need assistance submitting comments to the docket, please feel free to contact us.
About Trucksafe Consulting, LLC: Trucksafe Consulting is a full-service DOT regulatory compliance consulting and training service. We help carriers develop, implement, and improve their safety programs, through personalized services, industry-leading training, and a library of educational content. Trucksafe also hosts a monthly live show on its various social media channels called Trucksafe LIVE! to discuss hot-button issues impacting highway transportation. Trucksafe is owned and operated by Brandon Wiseman and Jerad Childress, transportation attorneys who have assisted some of the nation’s leading fleets to develop and maintain cutting-edge safety programs. You can learn more about Trucksafe online at www.trucksafe.com and by following Trucksafe on LinkedIn, Facebook, Twitter, and YouTube.