The Federal Motor Carrier Safety Administration is asking for comments to help it develop a new way to determine when a motor carrier is not fit to operate commercial motor vehicles, also known as a safety fitness determination.
In an advance notice of proposed rulemaking, FMCSA is asking for public comment on:
Current Safety Fitness Determination Process
Safety Fitness Determinations currently are determined based on an analysis of existing motor carrier data and data collected during an investigation (referred to as a “compliance review” or more casually as a “DOT audit.”)
It analyzes six factors based on the Federal Motor Carrier Safety Regulations (FMCSRs) and Hazardous Materials Regulations:
FMCSA calculates a vehicle out-of-service rate, reviews crash involvement, and conducts an in-depth examination of the motor carrier’s compliance with the acute and critical regulations of the FMCSRs and HMRs.
“Acute regulations” are those where noncompliance is so severe as to require immediate corrective action, regardless of the overall safety management controls of the motor carrier. “Critical regulations” are related to management or operational systems controls.
CSA and Safety Fitness Determinations
One of the criticisms of this process is that it is resource-intensive and reaches only a small percentage of motor carriers.
The agency has long hoped to link its Compliance, Safety, Accountability program and its Safety Measurement System to fitness reviews. The SMS is FMCSA’s prioritization system to identify motor carriers for investigation, which went into effect in 2010.
In 2016, FMCSA proposed using a carrier’s absolute measure, but not its relative percentile ranking, in SMS to generate unfit safety fitness determinations. The idea was to more effectively use FMCSA data and resources to identify unfit motor carriers and remove them from the roads, expanding the number of assessed and rated carriers.
That proposal also looked at eliminating the current rating terms of Satisfactory, Unsatisfactory, and Conditional and transitioning to a single determination of Unfit. The agency noted that a carrier getting a Satisfactory safety rating may be misconstrued as an FMCSA approval of the current operations of a motor carrier, when instead, it reflects FMCSA’s evaluation of a motor carrier’s operations at the time of the investigation. And under the current SFD process, a motor carrier with a Conditional rating is not prohibited from operating, even if a review reveals breakdowns in safety management controls in multiple areas.
Motor carriers generally opposed that proposal, saying there were problems with the SMS data that needed to be fixed before it could be used in this manner. And, they said, it violated the Fixing America’s Surface Transportation (FAST) Act. In 2017, FMCSA withdrew the 2016 SFD proposed rule but left the door open to revisiting it in the future.
What Happened to Item Response Theory (IRT)?
The FAST Act required the National Academy of Sciences to conduct an independent study of SMS.
The NAS report, issued in 2017, did find shortcomings. Its main recommendation was that FMCSA develop a complex statistical model known as item response theory. It was believed this system would better measure a carrier’s overall safety culture, rather than the current snapshot-in-time approach for safety determinations.
While initially expressing optimism about the potential for the item response theory model, after developing and testing an IRT model, FMCSA concluded that IRT modeling does not perform well for use in identifying motor carriers for safety interventions.
Instead, last year it issued a proposal to revamp the current CSA/SMS model. Those improvements include reorganizing the BASICs to better identify specific safety problems, combining the 958 violations used in SMS in 116 violation groups, simplifying violation and crash severity weights, removing percentile jumps that occur when carriers move into a new safety event group, and adjusting the intervention thresholds.
What FMCSA Wants to Know
FMCSA specifically requests responses to the following questions regarding how it does safety fitness determinations:
Concerns About the Safety Fitness Determination Proposal
Trucksafe Consulting in a blog post called the proposal “concerning … 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," wrote transportation attorney Brandon Wiseman.
"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."
Comments on this notice must be received on or before 60 days after date of publication in the Federal Register, referring to docket number FMCSA-2022-0003.
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