Carrier Safety Fitness Determination Notice of Proposed Rulemaking
SBA Roundtable Questions with FMCSA Responses:
Question 1: Would any violation of 392.2 be considered a critical violation? Or would this apply only to certain violations of state and local laws, which arguably is implied by the description in Table 3-1 on page 3613 of the NPRM? If not all 392.2 violations would count, what violation codes would?
Response 1: As proposed in the SFD NPRM, and under the current safety rating methodology, any violation of 49 CFR 392.2 would be considered a violation of a critical regulation. A pattern of noncompliance must be found for the violations to affect a safety fitness determination. Table 3-1 defines 392.2 as, “Operating a motor vehicle not in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated,” so there is no implication that some 392.2 violations would not be considered critical.
Question 2: The agency requested comment on whether certain activities, such as seat belt use, texting, hand-held mobile phones, etc., should be critical violations. However, if these activities are prohibited by state laws, would they become critical violations anyway?
Response 2: FMCSA is requesting comments on whether or not violations of specific requirements of the Federal regulations on safety belt use (49 CFR 392.16), texting (49 CFR 392.80), use of mobile phones (49 CFR 392.82), and other regulations should be critical violations. As Federal regulations, these violations would be cited under the respective Federal regulation, and not be cited under 392.2
Question 3: Would the 10% threshold for critical violations apply to any combination of violations of 392.2? Or would it apply to specific violations – i.e., 10% for speeding, 10% for following too close, etc.?
Response 3: The 10% threshold for critical violations would apply to the total number of violations cited. The NPRM does not propose that these would apply to subcategories of violations under this regulation.
Question 4: What would be the look-back period? Unlike RODS, for example, there are no record retention regulations, so would it be 12 months, 24 months or what?
Response 4: During an investigation, FMCSA’s current enforcement practice in reviewing compliance with 49 CFR part 392 is to review records from the 365-day period prior to the date of the investigation, or since the last investigation, if the period is less than 365 days. Violations of part 392 are most often found at the roadside, but investigations into Unsafe Driving may identify 392.2 and other part 392 violations through the review of supporting documents. The period for assessing on-road safety data is 24 months.
Question 5: Would investigators consider only drivers currently employed? If not, how far back would an investigator look?
Response 5: No. As noted in response to question 4, when investigating Unsafe Driving, FMCSA’s current enforcement practice is to review records from the 365-day period prior to the date of the investigation, or since the last investigation, if the period is less than 365 days. Under this practice, FMCSA reviews the records of a motor carrier’s currently and previously employed drivers.
Question 6: What constitutes a “record” that would be examined? For example, would a single driver’s inspection history be a “record”? Presumably an inspection cannot be a record because there is no such thing as a clean Unsafe Driving inspection.
Response 6: Investigations into Unsafe Driving may involve several regulatory areas and records to be review. For example, specifically relating to speeding, the most common record would be a driver’s record of duty status. Other parts of the investigation may include a review of inspections reports, or driver qualification files.
Question 7: Would the presence of Unsafe Driving violations in “at least 10% of records examined” in an investigation be determined on the basis of a randomly selected sample of records? If not, how would the 10% violation rate be calculated?
Response 7: FMCSA has discretion in how to sample drivers based on available carrier data.
Question 8: Other than requiring that there be at least two violations (page 3613 of the NPRM), how would the requirement for violations to be found in “at least 10% of records examined” be applied to small carriers? Would, for example, a carrier with 20 or fewer drivers fail the Unsafe Driving BASIC if just two drivers had 392.2 violations?
Response 8: Consistent with the existing SFD process, if the carrier’s records showed two 392.2 violations and those violations represented 10% or more of the records sampled, then this would be considered a pattern of noncompliance with a critical regulation. Using speeding violations as an example, the Agency would generally discover the violations through review of a driver’s records of duty status. The Agency’s current enforcement practice is to review at least 30 days of records of duty status for each driver selected.
Under the proposal, if the carrier meets the threshold for a pattern of noncompliance with a critical regulation, the carrier would fail the Unsafe Driving BASIC.
Question 9: Unlike other records examined in an investigation – RODS, DQ files, maintenance records, etc. – wouldn’t the information needed to review a carrier’s Unsafe Driving BASIC performance in an investigation already be in the agency’s possession – i.e., in the MCMIS database? If so, would the agency potentially use a review of these data records as a basis for targeting for investigations those carriers it already knows will fail the Unsafe Driving BASIC?
Response 9: During an investigation, the motor carrier’s records may include evidence of Unsafe Driving. For example, supporting documents or GPS records might prove that speeding violations occurred. Therefore, not all of these records are in FMCSA’s possession.
The Agency uses roadside inspection data, including Unsafe Driving violations, as one source of information for identifying the highest risk carriers for investigations. If a carrier has very poor on-road safety performance in the Unsafe Driving BASIC, it may fail this BASIC without an investigation, or this data may flag the carrier for an investigation.
Question 10: FMCSA appears to be proposing to drop the performance-based measure (i.e., a 34% or higher OOS rate) that currently is used in scoring the vehicle factor? True?
Response 10: The SFD NPRM would eliminate the current use of the six factors and therefore would not use the OOS rate in scoring a vehicle factor. The NPRM, however, proposes to use a broader amount of safety performance data to identify unfit carriers and expands, rather than drops, the use of performance-based data.
Question 11: Aside from excluding English proficiency violations, are there any other proposed changes in the NPRM that would prevent current SMS methodology from being used in analyzing the NPRM’s inspection-based method?
Response 11: Only violations of 49 CFR 391.11(b)(2) were excluded from the Agency’s overall analysis.
Question 12: Since 11 inspections in a BASIC will now be needed to “assess” a carrier, what use, if any, will FMCSA make of the roadside inspection data on carriers that have fewer than 11 inspections in a BASIC?
Response 12: The inspection data for carriers with less than 11 inspections will still be used to determine if other interventions are appropriate under the Agency’s Compliance, Safety, Accountability Program. If a motor carrier has less than 11 inspections and has many violations, they may still meet the Agency’s thresholds for interventions, including warning letters.
Question 13: In the regulatory evaluation, is it correct that FMCSA considered the loss of income only for drivers and not for other motor carrier personnel?
Response 13: This is correct. The Regulatory Impact Analysis does not include the costs for motor carriers to come into compliance because the costs for complying with the Agency’s regulations have already been factored into the rulemakings that established those requirements.