Where’s the FMCSA Enforcement Strategy Going?

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By Matthew Wrobel, Foley Services

The Federal Motor Carrier Safety Administration is a fairly young Federal agency. It was founded only in 2000 as a breakaway from the Federal Highway Administration. Over the past decade and a half, we’ve seen the agency grow in both scope and sophistication, as it worked to enforce safety regulations in the motor carrier industry.

As FMCSA looks for a new permanent leader after the resignation of Administrator Anne Ferro, we look at where FMCSA appears to be settling in terms of enforcement strategy and methodology. Namely, creating a “safety culture.”

Data Not People

Just like everyone else, FMCSA has a boss. In this case, FMCSA, while a part of the executive branch, is ultimately judged to be achieving or failing to meet its goals by Congress. The agency submits regular reports and check-ins to the Legislature to prove that it is doing its job.

One of the most recent examples of this was regarding the effectiveness of the CSA score in determining the safety rating of a motor carrier. Congress’ independent investigation service, the Government Accountability Office, claimed that Compliance, Safety & Accountability (CSA) rules make a poor quality tool for enforcement. FMCSA’s response is very revealing of how they intend to manage enforcement in the future.

“The GAO’s one-size-fits-all approach to analyzing inspection data would require the agency to triple the number of inspections we finance each year to exceed more than 10 million nationwide, which is simply unrealistic under our budget, and would fail to assess the behavior of more than 90 percent of the entire motor carrier population,” said FMCSA spokeswoman Marissa Padilla.

FMCSA is doubling down on the strategy of using CSA to plan enforcement and allowing the market to do a lot of the enforcement work for it through public scoring. The agency believes it can do more good by focusing its resources on the “very bad carriers” and allowing shippers and insurers to drive the merely “bad carriers” – those with elevated scores – off the road. The policy is controversial and many would say ineffective, but it will be a huge reversal if FMCSA moves away from it.

Non-Traditional Regulations

A recent FMCSA announcement also points to an interesting trend of finding slightly more abstract ideas for which to write regulations. In this case, FMCSA is collecting information to write regulations banning carriers from coercing drivers into breaking regulations such as hours-of-service. FMCSA appears to be choosing to act against one of the more commonly cited root causes of hours of service and safe operation violations, essentially the “I’ll get fired if I don’t drive” excuse.

This is far different from earlier philosophies that upped the penalty against the driver for violating the rules and ignored the problems at the carrier as a whole. FMCSA has used the language “safety culture” to describe where they wish to drive the industry.

Both these trends will show up more and more in the near and distant future as FMCSA solidifies the work that it has already done. For good or for bad, it looks like FMCSA has chosen its strategy and will be acting accordingly.

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