Trucking stakeholders urge FMCSA to hold off on Safety Fitness rule until CSA is reworked

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Updated Jun 1, 2016
Despite removing the BASIC percentile rankings from public view, FMCSA’s Safety Fitness Determination rule would still use the underlying BASIC data to determine carrier’s fitness to operate.Despite removing the BASIC percentile rankings from public view, FMCSA’s Safety Fitness Determination rule would still use the underlying BASIC data to determine carrier’s fitness to operate.

Many trucking industry stakeholders weighed in during the Federal Motor Carrier Safety Administration’s Safety Fitness Determination proposed rule comment period, urging the agency to hold off on the rulemaking until the Congressionally mandated reforms are made to the Compliance, Safety, Accountability Safety Measurement System.

The December-passed FAST Act highway bill requires the agency to the rework CSA system following the myriad of reports pointing out the system’s major flaws.

Even though the initial comment period on the agency’s proposed SFD rule ended May 23, those still wishing to comment can respond to comments already made in the docket until June 23. The full list of comments made can be found here.

The Notice of Proposed Rulemaking outlined FMCSA’s plan to update its safety rating system for carriers by integrating on-road safety data from inspections, along with the results of carrier investigations and crash reports. All of this would determine a motor carrier’s overall safety fitness on a monthly updated basis.

The SFD rule would replace the current three-tier federal rating system of “Satisfactory, Conditional and Unsatisfactory” for carriers with a single determination of “Unfit,” which would require the carrier to either improve its operations or shut down.

The American Trucking Associations said it is “strongly opposed” to the SFD proposal because it uses the same data as the current Compliance, Safety, Accountability Safety Measurement System.

“FMCSA should withdraw its proposal until the Congressionally mandated National Academies of Sciences review of the SMS is complete and the agency has implemented corresponding corrective actions,” ATA said in its comment.

ATA did say, however, that if the FMCSA could make the needed improvements to make the SMS system reliable, then it could support a future proposal similar to this one.

The Owner-Operator Independent Drivers Association, agreeing in part with ATA, said in its comments that using the same data that’s used in CSA will still result in unreliable data.

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“To the extent FMCSA’s proposal continues to rely upon Motor Carrier Safety Information System (MCMIS) data in its current form to make safety fitness determinations, it will be defective no matter how it changes its methodology,” OOIDA said in its comment. “The data does not represent a valid or reliable basis for independently measuring a motor carrier’s safety fitness.”

The trucker advocacy organization added it feels a “large portion of the data are simply allegations of violations reported by state and federal personnel from roadside inspections – allegations that drivers do not have the opportunity to challenge before an independent fact finder.”

OOIDA said the variability in the rate of violations from state-to-state is so high that, even with accurate reporting, the data won’t allow for accurate comparisons.

Roehl Transport (No. 67 on the CCJ Top 250) echoed OOIDA’s comments, saying a company that operates in states with low inspection rates would see many fewer inspections than a company that operates in high enforcement states, and a safer company could receive more violations because they run in those states.

Roehl also raised concerns about doing away with the “conditional” rating, which gave companies an opportunity to improve. With an “Unfit” rating, Roehl said, carriers could lose customers and see increased insurance premiums.

Owner-operator Steve Bixler, president of D&S Bixler Trucking, made comments along the same lines as OOIDA and ATA, saying the CSA program has been flawed from the start. FMCSA would be using flawed data to revoke carriers’ operating authority, he said.

Major truckload carrier Werner Enterprises (No. 11 on the CCJ Top 250) agreed. The rulemaking should be suspended until reforms to the CSA are complete, the carrier said in its comment.

Werner, along with Knight Transportation (No. 24), also said the rule shouldn’t be one size fits all, and the number of inspections with violations before a carrier is subject to the failure thresholds, which FMCSA set at 11 in the NPRM, should depend on the size of the fleet.

FMCSA dismissed industry concerns about the rule in April, saying the FAST Act didn’t limit its ability to proceed with the rule, as CCJ reported. The U.S. House’s Appropriations Committee, in its DOT funding package, included language that would block the SFD rule until reforms are made to the CSA system. A coalition of Representatives also voiced its opposition to the proposed rule until the CSA reforms are made.

Not all commenters said the rulemaking should be suspended, however.

Clint Larby, the owner of a 35-truck fleet in the Midwest, said the rulemaking would benefit a company in a situation such as his.

Larby said his company was the subject of an hours-of-service audit in early 2015, which resulted in a safety downgrade. He said since then, his company has fixed its problems, but has to wait on an inspector to come back out for another audit, and in the meantime, his company is stuck in “conditional hell.” He said that with the proposed rule, his company would receive its new, appropriate rating without having to wait on the audit the company has requested.

Carriers and carrier-related organizations weren’t the only industry stakeholders to comment.

The Transportation and Logistics Council said the new rule would have a “significant impact” on shippers, brokers and third-party logistics companies that hire carriers. The group said broker and shippers need to be able to tell from viewing the “Fit” or “Unfit” rating whether a carrier is safe or not.

“The final regulations, when published, must make it crystal clear that purchasers of motor carrier transportation need only to verify whether the carrier has been declared ‘Unfit,’ and have no responsibility to independently examine the safety fitness of a motor carrier beyond this determination, or any liability if they have done this.”

The Transportation Intermediaries Association said all crash and violation data should be removed from public view and only used to help FMCSA determine whether a carrier should be removed from the road. TIA said it’s FMCSA’s job, not the public’s, to police motor carriers, and FMCSA needs to be the one making a safe or unsafe designation.

TIA added it feels FMCSA needs to make a final proposed unfit designation public as soon as possible to ensure that shippers, brokers and receivers don’t continue to use unsafe carriers.