This post was written by: Channing Puls
If you’re aiming to enhance your safety rating, there’s an alternative path to elevate it from a rating below “Satisfactory.” This entails submitting an upgrade request with corrective actions in accordance with 49 C.F.R. 385.17. Carriers have the ability to file upgrade requests at any time following their specified safety rating, but it’s advisable to initiate this process right away, especially if your rating is assessed as “Unsatisfactory.”
Much like administrative appeals, the Federal Motor Carrier Safety Administration (FMCSA) is legally obligated to review and make a determination on upgrade requests for carriers with an Unsatisfactory rating within a specified timeframe after submission (30 days for hazardous materials carriers and 45 days for non-hazardous materials carriers). Thus, if your Unsatisfactory rating is still in the “proposed” stage, submitting an upgrade request within 15 days ensures that you will receive a response before your rating becomes final and your fleet faces shutdown. However, it’s worth noting that the FMCSA is under no requirement to expedite the review of an upgrade request for a Conditionally rated carrier. The agency may take several months to process the request depending on the complexity of the issues. If you’ve been operating with a subpar rating for an extended period, be aware that the FMCSA might require another audit before granting an upgrade request.
Carriers can start their corrective action plan upgrade by completing an upgrade petition along with a Safety Management Plan (SMP) to the FMCSA’s regional field office affiliated to their respective region, with a copy also sent to the FMCSA’s state office in their home state. These requests should reveal substantial evidence indicating that the carrier has significantly rectified the violations that caused the initial downgraded safety rating. It’s imperative that the carrier’s SMP depicts the steps taken to identify the determining causes of the violations and to correct them to avoid recurrence in the future. Minimum assertion of problem resolution without proof will inevitably lead to the request being denied.
The corrective action safety rating upgrade process may involve some interaction with the FMCSA agency. For instance, the FMCSA might review the initial request and safety management plan, concluding that additional evidence is needed, therefore requesting the carrier to provide it. The agency may even outright reject the request but provide the carrier with specific instructions for resubmission. If the request is denied, the carrier can utilize the FMCSA’s administrative appeal procedures if they believe the denial was unreasonable. Otherwise, the motor carrier must persist in rectifying the problems, record the corrective actions, and file another request to be reviewed.
Ultimately, if the FMCSA agency is satisfied with the proposed SMP, it can upgrade the rating without imposing any conditions. It’s important to note that the FMCSA rarely elevates an Unsatisfactory rating all the way to Satisfactory. Instead, the more typical course is to upgrade a safety rating to Conditional, followed by the requirement for the carrier to submit another request in the future, allowing time for assessing the effectiveness of the corrective actions.
In some instances, the FMCSA may introduce specific conditions when upgrading a carrier’s rating. These conditions are articulated in a “consent agreement” that the carrier must sign to receive the upgraded rating. Most of the time these conditions mandate the carrier provides periodic reports to the agency and maintains specified compliance levels. For example, the consent agreement might require the carrier to keep a specific BASIC category score below the alert threshold for a span of a two-year period. Failing to comply with the terms would result in the reinstatement of the previous downgraded safety rating.
Lastly, if your safety rating resulted from violations uncovered during a “focused audit” (an audit that did not encompass a review of all six factor areas), it’s important to recognize that you cannot upgrade your rating beyond what you had prior to that audit. For example, if you were an unrated carrier before the audit, and the audit led to a Conditional rating, the best possible outcome for your upgrade request would be a return to an unrated status. An upgrade to Satisfactory based on corrective actions would not be feasible.
The Department of Transportation (DOT) safety rating holds monumental significance for motor carriers and should be protected. If you have a rating below “Satisfactory,” there are avenues to go down to hoist upgrade your rating. However, achieving this is no simple task and will demand substantial effort to furnish evidence demonstrating that you have diligently followed the necessary measures to secure an improved safety rating.
**The content provided is not intended as legal advice and should not be construed or interpreted as such. If such advice is needed, The Paladin Group recommends that you seek counsel for the specific advice or services needed.**