Recently, the Federal Motor Carrier Safety Administration issued a notice of proposed rulemaking that will affect safety fitness determinations and, in turn, carriers.  The FMCSA’s notice of proposed rulemaking was published in the Federal Register on Thursday, January 21, 2016, and may be available at; docket number FMCSA-2016-0001.  The deadline for all initial comments is March 21, 2016, although it appears that response comments will be accepted for an additional 30 days, or until April 20, 2016.

In a nutshell, FMCSA is proposing eliminating the current three (3) standards of fitness—satisfactory, conditional or unsatisfactory—in favor of only one (1) standard, i.e., unfit.  This is a significant difference and, regrettably, there presently appears to be little guidance regarding how the transition from the current 3-standard system to a 1-standard system can occur smoothly, especially for those carriers with a conditional rating that, presently, can operate indefinitely.  From the viewpoint of a litigator, I can understand how removing the ‘conditional’ option from the board will likely serve to recast FMCSA’ exposure to lawsuits, on the grounds that a ‘conditional’ rating is a potentially valuable fact that can be exploited by lawyers involving a personal injury arising from a motor carrier incident.   One remarkable feature of FMCSA’s new proposal is that the rigidity of applying just one standard effectively removes the issue of uncertainty from the equation.  This rigidity may also be an unwelcome event (assuming that the rulemaking is adopted), but only time will tell.

The proposed single-standard safety rating system envisions FMCSA performing monthly assessments of carriers.  In the course of performing carrier assessments FMCSA intends to rely upon the newly-described fixed failure measures found in the proposed rulemaking.  Without further guidance from the agency, it appears that FMCSA is proposing to apply stricter standards to those BASICs with a higher correlation to crash risk, as evidenced by violations of unsafe driving and hours of service regulations, for example.  Similarly, FMCSA also intends to apply a ‘kitchen sink’ approach, so that the results of all agency investigations will be evaluated; this is in addition to the comprehensive on-site reviews that, to date, have been agency’s custom and practice.  As an example, a carrier could be found to be unfit by failing two or more BASICs through (i) inspections and/or (ii) investigation results.  This is a potent combination and enforcement weapon.

FMCSA argues that these proposed measures advance the government’s goals of having federal and state agencies more efficiently assess a larger number of carriers and, importantly, promptly identify those carriers that should be deemed ‘unfit’.  While it should be evident to carriers that FMCSA will be relying upon a larger universe of information in connection with future carrier assessments and, further, each particular piece of information can be subject to FMCSA evaluation and interpretation, the accuracy of the results of these assessments is left unanswered and remains to be seen.

The proposed rulemaking is far from a foregone conclusion.  For instance, responses need to be considered and may have the (unlikely) result of defeating the rulemaking.  Importantly, the rulemaking needs to be vetted for harmonization with other government regulations, such as the hazardous materials safety act, if only to avoid unintended as well as unjust results.  Nonetheless, carriers should be prepared to adjust their practices and policies to accommodate a new safety rating system.

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