FMCSA gives trucking interests additional 30-day comment period on safety regs
Trucking interests are getting an additional 30 days to comment on the Federal Motor Carrier Safety Administration's (FMCSA) advance notice of proposed rulemaking related to a potential revamp of its carrier rating system.
Trucking interests are getting an additional 30 days to comment on the Federal Motor Carrier Safety Administration’s (FMCSA) advance notice of proposed rulemaking related to a potential revamp of its carrier rating system.
FMCSA is seeking public comments on how it can develop a new methodology to determine when a motor carrier is not fit to operate in interstate commerce. It is seeking a fix to the Safety Management System (SMS), which trucking interests have panned for being unfair to some carriers for citing rather inane operational faults and hurting carriers in the marketplace.
The agency’s comment period originally went from on Aug. 29 for 60 days, through Oct. 30. But now FMCSA is extending the comment period another 30 days through Nov. 29.
Three influential transport interests—the American Trucking Associations (ATA), the Commercial Vehicle Safety Alliance (CVSA) and the American Bus Association (ABA)—had requested a deadline extension. ATA and CVSA requested 30-day extensions. ABA had asked for a 60-day extension.
FMCSA justified the extension because the associations had cited the “complexity and breadth” of questions. ATA recently held its annual convention in Austin, Texas, in mid-October. ATA said it planned to solicit feedback from members at that time.
FMCSA said it “believes it is in the public interest to allow for public comment for an extended period.”
Section 5221 of the Fixing America's Surface Transportation (FAST Act) required the National Academy of Sciences (NAS) to conduct an independent study of SMS. In 2017 FMCSA withdrew its 2016 notice of proposed rulemaking to await the completion of the correlation study by NAS, and an analysis of any corrective actions.
In 2017, the NAS published the report titled, “Improving Motor Carrier Safety Measurement.” The NAS report concluded that SMS, in its current form, is structured in a reasonable way and its method of identifying motor carriers for alert status is defensible.
The NAS agreed that FMCSA's overall approach, based on crash prevention rather than prediction, is sound. The NAS provided six recommendations. The primary recommendation was for FMCSA to develop a complex statistical model known as item response theory (IRT) and “f it is then demonstrated to perform well in identifying motor carriers for alerts, FMCSA should use it to replace SMS in a manner akin to the way SMS replaced SafeStat.”
FMCSA accepted all the NAS recommendations and developed an implementation plan, as required by the FAST Act.
In addition, section 5223 of the FAST Act prohibits FMCSA from using information regarding the SMS percentiles and alerts until the DOT's Office of the Inspector General makes five certifications required by the FAST Act. The OIG has not issued the five certifications. This statutory limitation therefore currently prevents FMCSA from using SMS percentiles or alerts, as was recommended by the NTSB.
As of late October, only about 20 comments had been filed to the docket.
The National Association of Small Trucking Companies (NASTC), Gallatin, Tenn., said the current system today is “very poor.”
“A new direction is worth considering, as long as the new course is simpler, clearer, fairer and faithfully (and) consistently executed by regulators,” NASTC said.
At present, NASTC told FMCSA that carriers subjected to lengthy reviews and found in compliance with Part 385 of the act are left unrated and not identified as “satisfactory.”
NASTC said an immediate step that would partially mitigate the consequences of the situation of inspected carriers left unrated would be to change “Unrated” to “Licensed to Operate.”
“Such a designation would be more accurate and less open to false interpretation,” the NASTC said.
Specifically, FMCSA is asking for public feedback on:
- the need for a rulemaking to revise the regulations prescribing the safety rating process;
- the available science or technical information to analyze regulatory alternatives for determining motor carrier safety fitness;
- feedback on the agency’s current safety rating regulations, including the process and impacts;
- the available data and costs for regulatory alternatives reasonably likely to be considered; and
- responses to specific questions in the advanced notice of proposed rulemaking (ANPRM).
Truckers complain that Compliance Safety Accountability (CSA) scores are unfair. CSA has erroneously branded objectively safe carriers as unsafe. This has cost carriers business because brokers and the shipping public have presumed that CSA scores reflect reality or that the official misbranding of a safe carrier as unsafe is enough to cause them vicarious liability concerns.
“Plaintiffs’ lawyers routinely use CSA scores as ‘evidence’ against carriers both in court and in settlement demands,” the small trucking companies’ association told the federal government.
Gateway RV Transport, Albion, Ind., recommended FMCSA retain the current three-tiered rating system of Satisfactory, Unsatisfactory and Conditional.
“We believe, having gone through the process of being rated Conditional and getting it upgraded to Satisfactory, that the current three-tiered rating system should be retained,” Gateway RV commented. “If a Motor Carrier is reviewed and has several issues they should not be marked as Satisfactory. However if the issues are not major they should also not be marked as Unsatisfactory so you would need a third status which Conditional fits.”
As a small fleet owner with four trucks, Ashabranner Trucking said the current Safety Rating system has major flaws.
Its main concern, and the aspect it would most desperately want to see changed, is the fact that any flaw on a truck receives an instant violation which instantly reflects negatively on a carrier’s safety rating.
For example, after a thorough and satisfactory pre-trip inspection a driver begins to drive and three down the road a clearance light decides to burn out or an air fitting springs a leak. A DOT officer notices this and pulls this driver over and performs an inspection.
“Without a warning or a chance to have this fixed, the carrier receives an immediate violation,” Ashabranner commented. “This does not seem like a fair system due to the fact that this carrier did not begin their trip with faulty equipment yet, through no fault of its own their equipment becomes non-compliant and negatively impacts their safety rating.”
A better solution would be to give carriers warnings for minor, unforeseeable defects rather than instant violations.
“These warnings can be stored in a national database. For example, after one to three days if the carrier has not repaired the issue during the next inspection, THEN the carrier would receive a violation for not correcting the warning in a timely manner,” Ashabranner told FMCSA.
