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Who
is affected?
Current rule: Passenger
(16+) and carriers of hazardous materials in quantities requiring placarding
(HM) that operate in interstate commerce.
New rule: Passenger
(16+), HM, and all other motor carriers operating in interstate commerce.
A motor carrier of
non-HM 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
CR
on or after
the effective date of
the final rule, and the motor carrier would receive
another
unsatisfactory safety rating, the rule would apply.
A motor carrier
receives a proposed unsatisfactory safety rating for the non-HM 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.
If a motor carrier
receives a proposed unsatisfactory rating, and does not improve, when must it
cease operations?
Current rule: On 46th
day after the proposed "unsatisfactory" safety rating (P, HM)
New rule: On 46th
day (P, HM); on 61st
day (all others). FMCSA can extend up to an
additional 60 days (but not for P, HM motor carriers)
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
HM 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.
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 HQ office issues a letter. We will do this as soon as
practicable, but not later than 30 days after the CR.
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).
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.
What FMCSA office can
suspend a rating [for up to 10 days]?
The FMCSA Service Center
for the appropriate geographic area.
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-HM 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.
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 HM in interstate commerce.
New rule: Federal
agencies would now be prohibited from using carriers of non-HM 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.
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 CMVs 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 HM carriers have 45 days, in which to improve the safety of
their operations or cease operating in interstate commerce.
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 HM
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.
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.
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 CMVs 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.
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.
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 -- 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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