The Federal Motor Carrier Safety Administration (FMCSA) released a notice of proposed rulemaking (NPRM) on safety fitness determination earlier this year. The National School Transportation Association’s (NSTA’s) Advocacy in Action column last month provided the issue’s history. An explanation of why NSTA opposes the proposal follows.
NSTA has several concerns with FMCSA’s safety fitness determination proposal: the proposed change in the rating system; the proposed change in methodology to determine an unfit carrier; and the disregard for the congressionally directed procedures for undertaking a significant rulemaking.
The current safety fitness rating system ranks a carrier as “satisfactory,” “conditional,” or “unsatisfactory” based on a comprehensive safety compliance review. This system aligns well with the safety culture within the school transportation industry as well as the safety culture that is expected by the public and the enforcement community. By viewing these ratings, there is no doubt as to the status of the carrier.
However, we recognize that many carriers are unrated under this system. FMCSA’s safety fitness determination proposal would radically modify the safety fitness rating system, and the new methodology would be based on on-road safety data in relation to five of the agency’s seven behavior analysis and safety improvement categories (BASICs), an investigation, or a combination of on-road safety data and investigation information.
Rather than recognize a safe carrier as being safe, FMCSA’s proposal would simply leave a safe carrier unrated, offering very limited guidance on the safety record of the carrier and causing potential confusion among carriers, law enforcement, and the public.
NSTA has grave concerns about the method proposed in this rulemaking. The proposed new system would remove all existing ratings and create only one rating, “unfit.” Rather than recognize a safe carrier as being safe, FMCSA’s proposal would simply leave a safe carrier unrated, offering very limited guidance on the safety record of the carrier and causing potential confusion among carriers, law enforcement, and the public.
This rating change, which lacks common sense, is culturally flawed as it seeks only to recognize carriers that do not adhere to the regulations while failing to positively acknowledge those that invest time, resources, and personnel into being in compliance and operating safely.
The FAST (Fixing America’s Surface Transportation) Act directed a National Academy of Sciences study and contained several provisions addressing regulatory reform at FMCSA. This section specifically advised that if a proposed rule is going to lead to a major rule, FMCSA must first begin with an advance notice of proposed rulemaking (ANPRM) or a negotiated rulemaking.
In this case, FMCSA utilized a waiver requirement in the law that permits the agency to waive the requirement if it deems an ANPRM impracticable, unnecessary, or contrary to the public interest. The safety fitness determination proposal is a very significant proposal that would fundamentally alter the rating system used to determine the safety of a commercial motor vehicle carrier and alter the paradigm in which the new rating occurs.
By sidestepping the ANPRM stage or deciding not to form a negotiated rulemaking committee, FMCSA is choosing to begin the discussion with its own proposal, rather than seeking input from the very motor carriers the proposal would affect.
Many motor carriers have offered criticism of the CSA (Compliance, Safety, Accountability) system and its safety measurement scores, agreeing with the school transportation industry that it is based on flawed data. For FMCSA to ignore that criticism and continue to push forward — while also offering a proposal without first seeking input from its affected audience — is misguided.
FMCSA has on two recent instances chosen to utilize the ANPRM (in the case of obstructive sleep apnea) and the negotiated rulemaking (for entry-level driver training) processes, and NSTA sees no reason why the agency could not proceed with either of those methods on the safety fitness determination rulemaking because it will have such a significant impact on all regulated commercial motor vehicle operators, including the school transportation industry.
NSTA opposes this proposal. FMCSA needs to address the issues that have been identified in the CSA program before trying to move forward on any proposal that would utilize the same data and information.