DOT Compliance and ‘The Safety Fitness Standard’

By Brent Bauer…

Every motor carrier must systematically inspect, repair, and maintain all CMVs under its control and maintain records to demonstrate compliance, including identifying information for each vehicle and a schedule of inspections to be performed. Your propane company must show that you have a systematic maintenance program in place.

In order to be prepared for a compliance review, propane motor carriers should be familiar with 49 CFR Part 385, “The Safety Fitness Standard” and, of course, all applicable Federal Motor Carrier Safety Regulations (FMCSR) and Hazardous Materials Regulations (HMR). Carriers should also be familiar with certain definitions, including the meaning and importance of the term “safety management controls.”

A satisfactory safety rating is based on the degree of compliance with the safety fitness standard for motor carriers. For intrastate transportation, motor carriers must meet the applicable state requirements. To meet the safety fitness standard, the motor carrier must demonstrate it has adequate safety management controls in place that function effectively to ensure acceptable compliance with applicable safety requirements to reduce the risk associated with:

• Commercial driver’s license standard violations (Part 383);

• Inadequate levels of financial responsibility (Part 387);

• The use of unqualified drivers (Part 391);

• Improper use and driving of motor vehicles (Part 392);

• Unsafe vehicles operating on the highways (Part 393);

• Failure to maintain accident registers/accident reports (Part 390);

• The use of fatigued drivers (Part 395);

• Inadequate inspection, repair, and maintenance of vehicles (part 396);

• Transportation of hazardous materials, driving/parking violations (Part 397);

• Violation of hazardous materials regulations (Parts 170-177); and

• Motor vehicle accidents and hazardous materials incidents

For the purposes of Part 385:

Compliance review is an on-site examination of motor carrier operations, such as drivers’ hours of service, maintenance and inspection, driver qualification, commercial driver’s license requirements, financial responsibility, accidents, hazardous materials, and other safety and transportation records to determine whether a motor carrier meets the safety fitness standard. A compliance review may be conducted in response to a request to change a safety rating, to investigate potential violations of safety regulations by motor carriers, or to investigate complaints or other evidence of safety violations. The compliance review may result in the initiation of an enforcement action.

Safety audit is an examination of a motor carrier’s operations to provide educational and technical assistance on safety and the operational requirements of the federal motor carrier safety regulations and applicable hazardous material regulations, and to gather critical safety data needed to make an assessment of the carrier’s safety performance and basic safety management controls. Safety audits do not result in safety ratings.

Safety management controls can be defined as the systems, policies programs, practices, and procedures used by a motor carrier to ensure compliance with applicable safety and hazardous materials regulations that ensure the safe movement of products and passengers through the transportation system, and to reduce the risk of highway accidents and hazardous materials incidents resulting in fatalities, injuries, and property damage.

Satisfactory safety rating indicates that a motor carrier has in place and functioning adequate safety management controls to meet the safety fitness standard prescribed in §385.5. Safety management controls are adequate if they are appropriate for the size and type of operation of the particular motor carrier.

Conditional safety rating indicates a motor carrier does not have adequate safety management controls in place to ensure compliance with the safety fitness standard that could result in occurrences listed in §385.5 (a) through (k).

Unsatisfactory safety rating indicates a motor carrier does not have adequate safety management controls in place to ensure compliance with the safety fitness standard, which has resulted in occurrences listed in §385.5 (a) through (k).

As defined above, safety management controls are the systems, policies, programs, practices, and procedures used by a motor carrier to ensure compliance with applicable safety and hazardous materials regulations.

It is not enough to know what regulations are applicable to your propane company. It is imperative to have a system in place that designates responsibilities to ensure proper records are maintained and updated as necessary. There are numerous records that have recurrent requirements, such as the annual inquiry and review of driving records, medical examinations, periodic vehicle inspections, hazmat employee training, and review of time records and driver’s logs.

Without a system in place to remind when records need to be reviewed and updated, it will be difficult to remain compliant and meet specific recordkeeping requirements.

The factors to be considered in determining the safety fitness and assigning a safety rating include information from safety reviews, compliance reviews, and any other data, which may include all or some of the following:

• Adequacy of safety management controls. The adequacy of controls may be questioned if their degree of formalization, automation, etc., is found to be substantially below the norm for similar carriers. Violations, accidents or incidents that are substantially above the norm for similar carriers will be strong evidence that management controls are either inadequate or not functioning properly.
• Frequency and severity of regulatory violations.
• Frequency and severity of driver/vehicle regulatory violations identified during roadside inspections.
• Number and frequency of out-of-service driver/vehicle violations of motor carrier operations.
• Increase or decrease in similar types of regulatory violations discovered during safety or compliance reviews.
• Frequency of accidents and hazardous materials incidents; indicators of preventable accidents; and whether such accidents, hazardous materials incidents, and preventable accident indicators have increased or declined over time.
• Number and severity of violations of CMV and motor carrier safety rules, regulations, standards, and orders that are issued by a state and compatible with federal rules, regulations, standards, and orders.

FMCSA will provide a motor carrier written notice of any safety rating resulting from a compliance review as soon as practicable, but not later than 30 days after the review. The notice will take the form of a letter issued from FMCSA’s headquarters office and will include a list of FMCSR and HMR compliance deficiencies that the motor carrier must correct.

If the safety rating is “satisfactory” or improves a previous “unsatisfactory” safety rating, it is final and becomes effective on the date of the notice.

In all other cases, a notice of a proposed safety rating will be issued. It becomes the final safety rating after the following time periods:

• For motor carriers transporting hazardous materials in quantities requiring placarding — 45 days after the date of the notice.

• For all other motor carriers operating CMVs — 60 days after the date of the notice.

• A proposed safety rating of “unsatisfactory” is a notice to the motor carrier that FMCSA has made a preliminary determination that the motor carrier is “unfit” to continue operating in interstate commerce, and that the prohibitions in §385.13 will be imposed after 45 or 60 days if necessary safety improvements are not made.

• A motor carrier may request FMCSA to perform an administrative review of a proposed or final safety rating. The process and the time limits are described in §385.15.

• A motor carrier may request a change to a proposed or final safety rating based upon its corrective actions. The process and the time limits are described in §385.17.

Unsatisfactory-Rated Motor Carriers; Prohibition on Transportation; Ineligibility for Federal Contracts (§385.13)

Generally, a motor carrier rated “unsatisfactory” is prohibited from operating a CMV. Information on motor carriers, including their most current safety rating, is available from FMCSA on the Internet at www.safersys.org, or by telephone at (800) 832-5660.

Motor carriers transporting hazardous materials in quantities requiring placarding are prohibited from operating a CMV in motor carrier operations in commerce beginning on the 46th day after the date of the FMCSA notice of proposed “unsatisfactory” rating.

All other motor carriers rated as a result of reviews are prohibited from operating a CMV in motor carrier operations in commerce beginning on the 61st day after the date of the FMCSA notice of proposed “unsatisfactory” rating. If FMCSA determines that the motor carrier is making a good-faith effort to improve its safety fitness, it may allow the motor carrier to operate for up to 60 additional days.

If a proposed “unsatisfactory” safety rating becomes final, FMCSA will issue an order placing out of service the motor carrier’s operations in commerce. The out-of-service order shall apply both to the motor carrier’s operations in interstate commerce and to its operations affecting interstate commerce.

If a motor carrier’s intrastate operations are declared out of service by a state, FMCSA must issue an order placing out of service the carrier’s operations in interstate commerce. The following conditions apply:

• The state that issued the intrastate out-of-service order participates in the Motor Carrier Safety Assistance Program and uses the FMCSA safety rating methodology provided in this part; and

• The motor carrier has its principal place of business in the state that issued the out-of-service order.

• The order prohibiting the motor carrier from operating a CMV in interstate commerce shall remain in effect until the state determines that the carrier is fit.

• Any motor carrier that operates CMVs in violation of this section is subject to the penalty provisions of 49 U.S.C. 521(b) and appendix B to part 386 of the FMCSRs.

If a proposed “unsatisfactory” safety rating or a proposed determination of unfitness becomes final, FMCSA will, following notice, issue an order revoking the operating authority of the owner or operator. For purposes of this section, the term “operating authority” means the registration required under 49 U.S.C. 13902 and §392.9a of this subchapter. Any motor carrier that operates CMVs after revocation of its operating authority will be subject to the penalty provisions listed in 49 U.S.C. 14901.

During a compliance review or safety audit, FMCSA gathers information by reviewing a motor carrier’s compliance with “acute” and “critical” portions of the FMCSR and HMR.

Acute regulations are those where noncompliance is so severe as to require immediate corrective actions by a motor carrier regardless of the overall basic safety management controls of the motor carrier. Critical regulations are those where noncompliance relates to management and/or operational controls. These are indicative of breakdowns in a carrier’s management controls.

The list of the acute and critical regulations, used in determining if a carrier has basic safety management controls in place, is located in Part 385, Appendix B, VII, titled “List of Acute and Critical Regulations.” Noncompliance with acute and critical regulations are indicators of inadequate safety management controls and usually higher than average accident rates.

The best way to assure regulatory compliance for your propane company is to determine if you have adequate safety management controls in place. Use the List of Acute and Critical Regulations in Appendix B of Part 385 to conduct a self-assessment of your operation. When doing so, take note of key words you will see frequently, such as knowingly, allowing, permitting, failing, using, causing, and requiring. These are words you do not want to see in a motor carrier investigator’s report.

To learn more about DOT’s safety fitness standard and safety rating process, refer to your copy of the FMCSR or go online to www.fmcsa.dot.gov/regulations or contact PERS at (800) 728-2482, www.pers-er.com.