House Funding Bill Contains Hours-of-Service Fix, No Safety Fitness Determination Delay
December 7, 2016 – The U.S. House of Representatives released the text of their short-term Continuing Resolution (CR). Within the text, was a fix to a drafting error dealing with drivers’ hours-of-service (HOS), from last year’s all-encompassing spending package, and no delay to the Safety Fitness Determination (SFD) rulemaking.
“These are significant wins for the industry. The HOS drafting error could have eliminated the restart provision altogether. The CR language will return sanity to this process,” said Bob Voltmann, President & CEO, TIA. “The SFD Rulemaking needs to move forward so that FMCSA can tell the industry which motor carriers are unsafe. We need to end the “got ya” system of courts second-guessing the safety fitness of carriers that FMCSA allows to operate. Congress is to be applauded for their work.”
The CR did not include a delay to the TIA supported Safety Fitness Determination rulemaking. TIA has been actively lobbying Congress to remove the delay language that was included in the Fiscal Year 2017 Transportation, Housing and Urban Development (THUD) appropriations bill. FMCSA has indicated that it will wait until the National Academy of Sciences (NAS) report (required by the FAST Act) is completed before moving forward with a Final Rule, but this ensures that a Congressional delay would not further restrict implementing this important rulemaking.
The HOS language bars the Agency from using funds to implement, administer, and enforce the 1:00 a.m. - 5:00 a.m. and 168 provisions. These provisions do not come back into effect even if the Agency completes the previously ordered study (the aforementioned drafting error). It does state that these rules could become effective again, if the DOT IG certifies they have a statistical and positive effect on motor carrier safety, which is highly unlikely.
Both Chambers are expected to pass the CR by the end of the week. The CR will prevent a Government shutdown and continue funding for federal programs and services until April 28, 2017.
If you have any questions, please contact Chris Burroughs (firstname.lastname@example.org, 703.299.5705).
House Appropriations Full Committee Marks Up THUD Bill
May 25, 2016 - Yesterday, May 24, 2016, the Full Appropriations Committee marked up and approved the Fiscal Year 2017 Transportation, Housing, and Urban Development (THUD) bill.
Of interest to TIA members, the new language would specifically prohibit the use of funds to implement, administer, and enforce the 34-hour restart restrictions (1:00 AM – 5:00 AM & 168-hour provision) and requires funds to be used to implement, administer, and enforce the “simple” 34-hour restart.
Additionally, the appropriations bill includes F4A provisions, which prohibit states from imposing labor laws or regulations on companies whose employees are subject to federal DOT HOS rules. States may not enact or enforce laws that require a motor carrier that pays employees on a piece-rate basis to pay those employees separate or additional compensation, provided the compensation is equal to or greater than the applicable hourly minimum wage of the state.
Finally, the appropriations bill includes, a delay to the FMCSA’s much anticipated Safety Fitness Determination (SFD) rulemaking until the CSA reform actions included in the FAST Act are completed.
TIA opposes any effort to delay or stall the SFD rulemaking. Our industry that is made up of thousands of businesses needs a single, clear-cut safety standard from the FMCSA, which was established to reduce the number of accidents, and is responsible for the overall safety of motor carriers. FMCSA, through this proposed rule, has provided the users of motor carriers (3PLs and shippers) with a clearer determination of which carriers are safe and which are not by eliminating the four-tiered structure and moving towards a single “unfit” designation. This important change goes a long way towards giving industry stakeholders further assurance from the Agency that the carriers they are hiring are safe to operate, which will reduce liability and frivolous lawsuits.
The bill now must be considered by the full House of Representatives, where TIA will work with Members of Congress to have an amendment considered that would strike the language from the Bill. After the House approved the Bill, it must be conferenced with the Senate, which does not have SFD delay language, and sent to the President’s desk. President Obama has vocally threatened to veto the spending package if “certain transportation anti-safety provisions remain in the bill.”
Please contact your elected officials today, to oppose any attempt to delay this rulemaking. The link contains a database that will automatically identify and send to your Members of Congress based on your company’s address that you enter.
If you have any questions, please contact Chris Burroughs (email@example.com, 703.299.5705).
On January 21st, the Federal Motor Carrier Safety Administration (FMCSA) will publish in the Federal Register the notice of proposed rulemaking (NPRM) for the much anticipated carrier safety fitness determination (SFD). FMCSA proposes to amend the Federal Motor Carrier Safety Regulations (FMCSRs) to revise the current methodology for issuance of a SFD for motor carriers. The proposed new methodologies would determine when a motor carrier is not fit to operate commercial motor vehicles (CMVs) in or affecting interstate commerce. This would be based on the carrier’s on-road safety data in relation to five of the Agency’s seven Behavior Analysis and Safety Improvement Categories (BASICs); an investigation; or a combination of on-road safety data and investigation information. 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.
Initial comments must be received no more than 60 days after the date of the publication in the Federal Register and reply comments on or before 90 days after the date of the publication in the Federal Register.
Under this NPRM, the FMCSA is proposing to amend the process by which commercial motor vehicles are given a safety fitness determination (SFD). The Agency seeks to include on-road safety data, inspection reports, and preventable crashes into their quiver available to them to determine a motor carrier’s safety fitness. Additionally, the Agency seeks to clarify a motor carrier’s status by eliminating the three-tier rating system and move to a red light system of “unfit” carriers. Furthermore, the Agency ensures through this proposal that absolute measures are utilized to determine a carrier’s safety fitness, versus the current state of play in the CSA SMS, which ranks motor carriers based on the performances of not only their operations, but that of their peers. Several other significant changes are detailed below.
Summary & Analysis:
As the Federal Agency responsible for commercial motor vehicle (CMV) safety, FMCSA must identify unfit motor carriers. Under the existing regulations, a compliance review must be conducted to issue a SFD and, if a motor carrier receives a final unsatisfactory safety rating, FMCSA declares that motor carrier to be unfit to operate on the nation’s highways. The current SFD process does not permit the Agency to use all of the on-road safety data in the Motor Carriers Management Information System (MCMIS) in making each SFD. Integrating this information into a SFD would improve the assessment of motor carriers, and has long been a recommendation of the National Transportation Safety Board (NTSB). Under this proposal, unfit determination could be based on a carrier’s on-road safety data alone.
In this NPRM, FMCSA proposes to eliminate the current three-tier rating system (For example, satisfactory, conditional, and unsatisfactory) for determining safety fitness in favor of a single determination of unfit. Using data from inspections or both, FMCSA proposes to evaluate carriers monthly to determine if they failed two or more BASICs and thus should be proposed unfit. A motor carrier would be proposed unfit if it:
- Failed two or more BASICs based exclusively on on-road safety data from 11 or more inspections in a 24-month period with one or more violations in each, in a single BASIC, before a carrier could fail the BASICs;
- Had violations of the proposed set of critical and acute regulations, identified through an investigation, that cause the motor carrier to fail two or more BASICs; or
- Failed two or more BASICs based on a combination of data from inspections and investigation results.
In contrast to the current methodology that ranks carriers based on peer event groups and fluctuations occurred based on the performance of other carriers, this proposal would take a carrier’s monthly performance and compare it to an “absolute failure standard” that would be set in regulation based on each safety event group. Because the absolute failure standard would not change month to month, changes in another company’s performance would not impact the motor carrier. The failure standard will only be changed after rulemaking by the Agency, with notice and comment. The carrier’s SFD measure would reflect its own performance against the failure standard, and would not be impacted by other carrier’s performance.
From the motor carrier’s measures, percentile rankings, and intervention thresholds, FMCSA developed proposed SFD failure standards at higher levels of noncompliance with the FMCSRs and HMRs, which provide stronger correlations to previous crashes. The proposed SFD failure standards would be equivalent to the measures that would determine a motor carrier unfit at the 96th percentile for the Unsafe Driving and HOS Compliance BASICs, that is, a person would know the carrier is in the worst 4 percent of carriers that have measurable (non-zero) data in the MCMIS. The proposed SFD standards would determine that a motor carriers is unfit at the 99th percentile for the Driver Fitness, Vehicle Maintenance, and HM Compliance BASICs. A carrier’s absolute BASIC performance measure in any given month, not the carrier’s percentile within a given month, would be used to determine if the carrier failed the BASIC. A carrier with an absolute performance measure that equals or is greater than the proposed failure standard in this proposal for the carrier’s safety event group would fail that BASIC using only on-road safety data.
The Crash Indicator BASIC and the Controlled Substances/Alcohol Compliance BASIC would be evaluated only during investigations. This is because the Crash Indicator BASIC currently does not include preventability determinations and controlled substances and alcohol violations from on-road safety data would rarely meet the data sufficiency standards. Thus, these two BASICs would not be used to make a proposed unfit determination based on on-road performance data alone, although data relating to the Crash Indicator BASIC and Controlled Substances/Alcohol BASIC would certainly be used during investigations. To be proposed unfit based solely on on-road safety data, a motor carrier would have to meet or exceed the absolute failure standard established for its safety event group for two BASICs.
Further, only preventable crashes would be used in calculating an SFD. This differs from the current SFD process which only determines the preventability of crashes to contest a motor carrier’s recordable crash rate after the SFD.
It is important to note that while the relative percentiles in SMS are not used in making SFDs under this NPRM, the same data is being used. Other concerns about the system including disparities for long-haul and short haul carriers; differences for urban and rural motor carriers; and enforcement differences by the States have all been considered. The long and short haul differences are minimized by the combination (long-haul) and straight truck (short haul) segmentation. The impacts of urban and rural transportation are factored into the calculation of the Crash Indicator BASIC failure rates. Lastly, while enforcement differences exist between the States, the nature of the high failure standard in this rule is that the patterns of non-compliance for the carriers that are proposed unfit are not the result of these disparities but are the result of recurring non-compliance.
After a proposed unfit SFD, a motor carrier would have four different administrative proceedings available to them:
- A review of material errors in assigning a proposed unfit SFD;
- A review claiming unconsidered on-road performance inspection data;
- A review after a request to operate under a compliance agreement; and
- After a final “unfit” designation, a carrier can apply to continue to operate by applying for a new operating authority. They would be subject to a new safety registration, and new operating authority if the Agency deems necessary. They would maintain same USDOT number under URS to show history of operation.
The revised SFD methodology and rule would be used to identify and take legal action against unfit motor carriers that have failed to implement and maintain adequate safety management controls for achieving compliance with the FMCSRs and HMRs. The Agency would maintain the current administrative review processes provided under §385.15, would propose a compliance agreement procedure similar to the existing §385.17 upgrade process for carriers with a proposed unfit SFD, and would add an opportunity to submit missing inspection data under §385.16. FMCSA proposes to reduce the time for filing a petition for administrative review from the current 90 days to 15 days after the issuance of the proposed unfit SFD. Further, a new process, under §385.18, explains the requirements for demonstrated corrective action and compliance agreements for entities with revoked registration due to an unfit safety rating.
Under this proposal, the Agency estimates that it would have proposed 3,056 unfit motor carriers in 2011, about 2.5 times the number of proposed unfit SFDs relative to 1,232 under the current process. FMCSA estimates that the 3,056 unfit carriers would consist of:
- 262 motor carriers based solely upon use of inspection data,
- 2,674 motor carriers based upon result of investigations, and
- 120 motor carriers based on a combination of inspection and investigation data.
Additionally, under the proposed rule, it would identify and make unfit carriers involved in 41 more fatal crashes, 508 more injury crashes, and 872 more tow-away crashes in a subsequent year. The crash reduction elicited from these carriers constitutes the benefits of the rule.
In terms of current numbers, the Agency notes that currently 364 more motor carriers than the number that currently receive an unsatisfactory safety rating will receive a final unfit SFD.
The Agency estimates an annualized net benefit for the ten year period of 2017-2026 to be $240.9 million, based on increase in carrier population, driver wages, and current monetized value of statistical life component for a fatal crash, injury crash and tow-away crashes.