Whatâ€™s new in the DOT world? DOT continues to move forward with their new rating system. I had dismissed this out of hand, but, unfortunately, I probably need to start taking it seriously.
DOT served notice in January, 2016, that it intended to eliminate the Satisfactory, Conditional, and Unsatisfactory rating hierarchy, and replace it with a Fit/Unit determination, which would be driven, in part, by CSA scores. Since Congress slapped the agency and their unreliable CSA scores down in December, 2015 with the FAST Act, I somewhat ignored this rulemaking.
However, FMCSA, while often wrong, is never in doubt. They are marching merrily along with their rulemaking, undaunted that pretty much everyone else thinks their CSA rating methodology is wrong. Absent more Congressional action, FMCSA will get their way, and the new rating system will be implemented.
My best guess on the timing? The comment period on the rulemaking is closed. So, the agency will now write their rebuttals to all the negative comments they have received. If you think they are considering the merits of the comments, you donâ€™t know how government works. Once theyâ€™ve finished their arguments, theyâ€™ll publish the final rule. My guess is it will happen at the end of the year, with an implementation date of sometime in the latter part of 2017. They might get it done faster, but Iâ€™ll stick with the 2nd half of 2017. The industry will have until that date to gin up some more Congressional intervention to stop them.
How will the new rating scheme affect you, should it happen? Most of you carriers with Conditional ratings will be rated â€˜Fitâ€™. Hooray! Some of you will be rated â€˜Unfitâ€™, which means youâ€™re out of business. A few carriers without ratings, or with Satisfactory ratings will be rated as â€˜Unfitâ€™, and theyâ€™ll be tossed out, too.
Once the rulemaking is implemented, there will be an initial culling of hundreds of motor carriers, who will be determined to be â€˜Unfitâ€™. There is an appeal process, and a corrective process, so a motor carrier may try to save itself. The appeal process is a complete and utter sham. In FMCSA-world, you are guilty until you prove yourself innocent. You will have a very limited amount of time to prove yourself innocent, and then itâ€™s unlikely your case will be heard by FMCSA lawyers anyway. Your only chance is to find the tens of thousands of dollars necessary to take your case to a real court of law, and not FMCSAâ€™s kangaroo court.
As for the corrective action process, this is a legitimate process, where you actually do get fair treatment. It is not timely treatment, though. The agency only has a few people dedicated to reviewing rating upgrade petitions, and once this rulemaking hits, theyâ€™ll be swamped with petitions. Thereâ€™s no way theyâ€™ll be able to review them within the time period allowed, with the result being carriers will be irrevocably placed out of business, while their petition sits on somebodyâ€™s desk.
Frankly, I think the agency wants to put these carriers out of business, and is not particularly concerned with due process, and other such high-minded nonsense.
This is all speculation at this point, as no one knows, 1) whether this will actually happen, 2) when it will happen, and 3) what the exact nature of the rating system will be if it happens. Nevertheless, I think thereâ€™s a better than even chance this happens sometime in 2017.
Eric Arnold is a Very Former Enforcement Manager with the Federal Motor Carrier Safety Administration, and a leading expert on USDOT compliance for small businesses. Do you have a question for Eric Arnold? Email him at email@example.com.