Under the old rules, an unsatisfactory rating could only put hazardous materials haulers and bus companies out of business -- at least technically speaking.
Once notified of the Federal Motor Carrier Safety Administration’s intent to assign the rating, carriers had 45 days to appeal and/or correct deficiencies. After 45 days the rating became final and the carrier was prohibited from hauling hazmat, more than 15 passengers, or government freight. Nothing in the rules said an “unsatisfactory” carrier couldn’t haul other types of freight, as long as it could find insurance companies and customers willing to take the risk.
The new rules, mandated by Congress, retain the 45 day deadline and prohibitions for bus companies and hazmat carriers. They also add new prohibitions for other carriers, giving them 60 days to appeal a proposed unsatisfactory rating before being ordered out of service.
Safety ratings are issued after a compliance review (CR). In most cases the investigator conducting the audit will informally advise the carrier of the proposed rating at the conclusion of the review. If the CR is a follow-up, the investigator will extend this courtesy only if the rating is something other than unsatisfactory. This informal advice should be relatively detailed, thus permitting the company to immediately take corrective actions.
Official notification of the proposed rating will come by letter from FMCSA headquarters.
The 45- or 60-day period begins on the date the official notice is issued.
It’s important to remember that the letter from FMCSA is only a notice of proposed rating. A final rating isn’t assigned, or made public, until the statutory deadline has run out. If necessary corrections aren’t made within the 45- or 60-day deadline, the carrier will receive a formal order to cease and desist.
The new regulations provide two possible responses to a proposed unsatisfactory rating. The first is to request an administrative review based upon a challenge to the investigator’s preliminary findings of fact.
As a practical matter, this approach is not likely to resolve the situation within the allowable time frame. The FMCSA administrator is likely to uphold the findings made by the investigator, which means the matter must then go before an administrative law judge. There is no chance that a hearing can be held and an ALJ decision rendered within the 60-day time frame. This does not mean that a carrier shouldn’t challenge an investigator’s findings. It simply means that you shouldn’t count on this approach to avoid a shutdown of operations.
The second response to a proposed unsatisfactory rating is to request a follow-up CR based on corrective actions taken. This is probably the best way to avoid or delay the final assignment of an unsatisfactory rating. FMCSA has said it is willing to work with carriers in avoiding that prospect. In fact, the regulations give the agency authority to extend a final decision for another 60 days if it determines that a motor carrier is making a good-faith effort to improve its safety fitness.
You might even be able to exercise both response options. FMCSA’s discussion of the new rules indicates that a carrier may pursue a request for administrative review and a request for a follow-up compliance review at the same time.
Requests for administrative review must be submitted within 15 days from the date of the written notice. The request must be addressed to the Chief Safety Officer at FMCSA and must include a list of all factual and procedural issues in dispute plus any information or documents that support the carrier’s argument.
A request for a follow-up review must also be submitted within 15 days.
Under the regulations, FMCSA promises to perform these requested follow-up reviews within 30 days for hazmat haulers and within 45 days for all other carriers. This time frame requires the agency to complete its action upon the follow up review within the statutory time limits before the unsatisfactory rating becomes final.
The new rules appeared August 22, 2000, in the Federal Register, which can be accessed on the Internet at www.nara.gov/fedreg. Regulations covering safety fitness procedures and ratings are found in Part 385 of the Federal Motor Carrier Safety Regulations, available at the FMCSA web site, www.mcs.dot.gov.