This information from the Federal Motor Carrier Safety Administration provides its final rule for unfit motor carriers and safety fitness procedures.
Safety Fitness Procedures Background and Synopsis
- The Department of Transportation proposed this initiative in Section 2 of "The Motor Carrier Safety Act of 1997," legislation sent to Congress during re-authorization of the surface transportation program.
- Section 4009 of the Transportation Equity Act for the 21st Century (TEA-21) adopted the Administration's proposed shutdown authority. It was signed by President Clinton in June, 1998.
- Section 4009 of TEA-21 amends 49 U.S.C. 31144, which originated from section 215 of the Motor Carrier Safety Act (MCSA) of 1984. That section of the U.S. Code requires the Secretary of Transportation to maintain, by regulation, a procedure for determining the safety fitness of an owner or operator of commercial motor vehicles (CMVs). Implementing regulations have been in effect since 1988.
- Section 4009 also transferred the prohibitions in 49 U.S.C. 5113 to section 31144. Section 5113 was enacted under section 15(b) of the MCSA of 1990. It prohibited motor carriers rated "unsatisfactory" from using commercial motor vehicles to transport, in interstate commerce, more than 15 passengers (including the driver) or hazardous materials (HM) in quantities requiring placarding. The prohibitions would start on the 46th day after the rating was issued. Regulations implementing section 5113 have been in effect since 1991.
- Section 5113 also prohibited Federal agencies from using "unsatisfactory" rated motor carriers to transport more than 15 passengers and placardable quantities of hazardous materials.
- The MCSA of 1990 explicitly referred to the three-part rating scheme used by the FHWA (satisfactory, conditional, unsatisfactory). It directed the agency to prohibit unsatisfactory rated motor carriers from transporting passengers and hazardous materials after the 45 day period.
Rationale for New Rule
- The FMCSA concluded that the functionally equivalent requirements of section 4009 of TEA-21 authorize the FMCSA to continue using its current safety fitness rating standards and methodology.
- The current and previous versions of 49U.S.C. 31144 are very similar. The only difference mandated by section 4009 is the different time periods allowed for passenger and hazardous materials carriers (45 days) and for non-hazardous materials freight carriers (60 days) to improve the safety of their operations or cease operating in interstate commerce. Therefore, the FMCSA believes that Congress intended section 4009 to authorize the application of the principles of in section 15(b) of the MCSA of 1990 (i.e. the unsatisfactory safety rating) to the entire range of motor carriers that operate commercial motor vehicles in interstate commerce.
- In sum, Section 4009 added a prohibition applicable to all owners and operators of commercial motor vehicles not previously subject to 49 U.S.C. 5113 -- that is, those not transporting hazardous materials in quantities requiring placarding or passengers -- from using those vehicles in interstate commerce starting on the 61st day after being found "unfit." It also prohibits Federal agencies from using those owners and operators to provide interstate transportation of non-hazardous materials freight.
Determination of Unfitness
- The FMCSA assesses the safety performance of motor carriers in a procedure known as a compliance review. During a compliance review, on-the-road performance factors (accidents, drivers and vehicles placed out-of-service, other violations, hazardous materials violations) are examined and federal regulatory violations may be discovered. The FMCSA assigns a safety rating on the basis of compliance review findings.
- An unsatisfactory rating means that a motor carrier does not have adequate safety controls in place. Based upon its understanding of Congressional direction, the FMCSA will use an unsatisfactory safety rating as an determination of unfitness.
- The rule will prohibit all motor carriers found to be unfit from operating commercial motor vehicles in interstate commerce.
Key Features of the Proposal Include
- Motor carriers will have 60 days after the FHWA makes a determination of unfitness to improve operations or face shutdown. The agency may extend the compliance period another 60 days only if the motor carrier is making a good faith effort to improve its safety fitness.
- Passenger and hazardous materials motor carriers will continue to have 45 days to correct deficiencies.
- The proposed regulation will not be applied retroactively. It will apply only to motor carriers rated unsatisfactory on or after the effective date of a final rule.
- Carriers holding an unsatisfactory rating at the time the rule becomes effective are not subject to immediate shutdown. However, if the carrier still is determined to be unfit after a follow up visit by a safety investigator, the new provisions would apply.
- The FHWA intends to carefully track the safety of operations of motor carriers currently holding unsatisfactory safety ratings to ensure that the safety of the traveling public is not exposed to increased risk from a motor carrier's operation.
- Under the provisions of TEA-21, federal agencies will continue to be prohibited from using any motor carrier for interstate passenger or hazardous materials transportation that has an "unsatisfactory" safety rating. They will also be prohibited from using any other motor carrier that has an "unsatisfactory" safety rating issued under the provisions of this rule.
Q. Who is affected?
Current Rule: Passenger (16+) and carriers of hazardous materials in quantities requiring placarding (hazardous materials) that operate in interstate commerce.
New Rule: Passenger (16+), hazardous materials and all other motor carriers operating in interstate commerce.
Q. A motor carrier of non-hazardous materials freight received a final unsatisfactory safety rating before the effective date of the new rule. Does this new rule apply?
No. But if the FMCSA were to perform a follow-up compliance review on or after the effective date of the final rule, and the motor carrier would receive another unsatisfactory safety rating, the rule would apply.
Q. A motor carrier receives a proposed unsatisfactory safety rating for the non-hazardous materials part of its operations. Does this affect all of its operations?
Yes. The safety rating and its consequences apply to the motor carrier as a whole.
Q. If a motor carrier receives a proposed unsatisfactory rating and does not improve, when must it cease operations?
Current Rule: On the 46th day after the proposed unsatisfactory safety rating (P, HM)
New Rule: On the 46th day (P, HM); on the 61st day (all others). FMCSA can extend up to an additional 60 days (but not for P, HM motor carriers)
Q. What motor carriers can FMCSA allow an additional 60 days before a proposed unsatisfactory rating becomes final?
The FMCSA may allow unsatisfactory-rated motor carriers that do not transport passengers or hazardous materials to operate for an additional 60 days. The agency may do this if it determines the motor carrier is making a good faith effort to improve its safety fitness. The FMCSA may make the determination at the end of the initial 60-day period or any extensions of that period. The total period cannot exceed 120 days.
Q. When do the 45 and 60-day periods start?
Current Rule: On the day following the compliance review (CR) that produced a rating.
New Rule: When the FMCSA's Washington, DC office issues a letter. FMCSA will do this as soon as practicable, but not later than 30 days after the compliance review.
Q. When must the FMCSA perform follow-up compliance reviews?
Current Rule: Within 30 days of a carrier's request (unsatisfactory-rated P, HM carriers)
New Rule: Within 30 days of a carrier's request (unsatisfactory-rated P, HM carriers); within 45 days after a carrier's request (all other).
Q. What if the FMCSA cannot make its determination within 45 days?
Current and New Rules: The agency may conditionally suspend any unsatisfactory safety rating and rescind any related administrative order for up to 10 additional calendar days.
Q. What FMCSA office can suspend a rating for up to 10 days?
The FMCSA Service Center for the appropriate geographic area.
Q. Will the FMCSA still perform administrative and corrective-action reviews?
Yes. The FMCSA will continue to perform administrative reviews (385.15) and corrective-action reviews ( 385.17) for motor carriers with a proposed conditional or unsatisfactory safety rating. However, the FMCSA will give priority to:
(1) Motor carriers with new proposed unsatisfactory ratings, and
(2) Motor carriers of non-hazardous materials freight that held an unsatisfactory safety rating issued prior to the effective date of a final rule, and that received a follow-up proposed unsatisfactory rating on or after the effective date of a final rule.
Q. Can federal government agencies use unsatisfactory rated motor carriers?
Current Rule: They must not use motor carriers with an unsatisfactory safety rating to transport passengers or hazardous materials in interstate commerce.
New Rule: Federal agencies would now be prohibited from using carriers of non-hazardous materials freight receiving a final unsatisfactory safety rating issued on or after the effective date of the rule. They would continue to be prohibited from using these motor carriers to transport P, HM.
Q. Some in the trucking industry maintain DOT misinterpreted the section of TEA-21 in drawing an equivalence between a declaration of unfitness and an unsatisfactory safety rating. What is DOT's response?
Both the Motor Carrier Safety Act of 1990 (MCSA) and Section 4009 of TEA-21 focused on Section 31144 of Title 49 of the United States Code. The similarity between the current 49 U.S.C. 31144 and the previous 49U.S.C. 31144 convinces the FMCSA that Congress intended section 4009 apply the principles of section 15(b) of the MCSA to the entire range of motor carriers that operate commercial motor vehicles in interstate commerce.
The FMCSA's use of an unsatisfactory rating assigned under the Safety Fitness Rating Methodology (SFRM) is in line with that of section 15(b) of the MCSA of 1990. There is nothing in the legislative history of section 4009 of TEA-21 that suggests the FMCSA should implement a different approach.
The only difference mandated by section 4009 is that carriers of general freight would have 60 days after the agency makes a determination of unfitness, and passenger and hazardous materials carriers have 45 days, in which to improve the safety of their operations or cease operating in interstate commerce.
Q. Why has DOT issued this rule without first revising its safety fitness rating system?
The MCSA explicitly referred to the three-part rating scheme used by the FHWA (satisfactory, conditional, unsatisfactory). It directed the agency to prohibit unsatisfactory rated motor carriers from transporting passengers and hazardous materials after the 45 day period.
Because of the parallels between the MCSA and sec. 4009 of TEA-21, the FMCSA concluded that section 4009 authorizes (but does not require) the FMCSA to continue using its current safety fitness rating standards and methodology.
Q. What is DOT doing to change the current rating system? What is the status of work?
The agency has rulemaking in progress on this issue. The NPRM draft is under internal departmental review.
Q. What makes this rule performance based?
The FMCSA tracks, among other things, motor carriers Part-390-recordable accidents as well as safety violations found and commercial motor vehicles placed out-of-service at roadside. Therefore, the quality of a motor carrier's safety performance, or more specifically, events indicating negative safety, is one of the key things that can indicate to the FMCSA that a compliance review is in order.
Q. When may a motor carrier request a review from the FMCSA?
A motor carrier may request a review because:
(1) It has taken action to correct the deficiencies that resulted in a proposed or final rating of conditional or unsatisfactory.
(2) It believes the FMCSA has made an error in assigning a proposed or final safety rating.
Q. How will the FMCSA respond to requests for review of ratings??
A motor carrier must make this request in writing to the FMCSA Service Center for the geographic area where the carrier maintains its principal place of business.
The FMCSA will perform reviews of requests made by motor carriers with a proposed or final unsatisfactory safety rating within 30 days for motor carriers transporting passengers or placardable quantities of hazardous materials, and within 45 days for all other motor carriers.
The FMCSA will inform the motor carrier in writing of its findings as to whether or not the carrier has taken all the corrective actions required, and whether or not its operations now meet the safety standards and factors specified in 385.5 and 385.7.
If a motor carrier whose request for rating change is denied, it may request the FMCSA for an administrative review. The motor carrier must make the request within 90 days of the denial of the rating change request. However, if a proposed rating has become final, it remains in effect while the administrative review is in process.
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