Recently, the Federal Motor Carrier Safety Administration issued its 2012-2016 strategic plan. The plan begins with a discussion of changes in the commercial motor vehicle industry. The FMCSA regulates approximately 500,000 active interstate motor carriers, 12,000 passenger carriers, and 7 million active commercial CDLs. The total miles traveled by all CMVs have grown 12.3% over the past ten years. That includes an increase of 43.7% for large truck and bus mileage.

The most interesting development is the FMCSA’s desire to regulate the “transportation-life cycle.” FMCSA makes no bones about it: this transportation-life cycle phrase is designed to pull shippers, brokers and consignees into the regulatory process.

The FMCSA also continues its long-standing complaint that it is unable to regulate passenger vehicles when it’s clear that passenger vehicles cause 75% of car-truck accidents. FMCSA plans to increase partnerships with state law enforcement to eliminate high-risk activities around commercial motor vehicles.

The FMCSA also appears to be focused on preventing the reincarnation of chameleon carriers and eliminating fraud in the CDL process. It’s also no secret that the FMCSA wants to establish rulemaking to revise 49 C.F.R. § 385, Safety Fitness Procedures, so that the safety rating of the motor carrier is tied to the Compliance, Safety, and Accountability (CSA) Safety Management System (SMS). If they get their way, your Basic scores will be your safety rating.

FMCSA seems determined to continue to make more data available to the public, while acknowledging that the quality of the data is currently a problem. It would seem that increasing the quality of the data should be a priority before broadening the scope of the data that’s available. More concerning to motor carriers is the potential for expansion of programs such as the “safer bus mobile app” which purports to give consumers safety ratings of passenger carriers.

Also problematic is the FMCSA’s backpedaling from the current regulations regarding carrier safety ratings. Unlike CSA/SMS, the current 49 C.F.R. § 385 creates the safety rating procedure through the due process of the Administrative Procedures Act.

While the satisfactory/conditional/unrated/unsatisfactory framework are the current rules, FMCSA has recently issued a “shipper and insurer briefing” which states, “a satisfactory safety rating does not mean that the carrier is currently in compliance and operating safely.” In other words, although FMCSA has inspected the carrier and given that carrier a satisfactory safety rating, the FMCSA refuses to stand behind its statutorily mandated rulemaking, and instead pushes safety qualification of carriers onto shippers, brokers and plaintiff’s lawyers. More specifically, FMCSA “encourages the public to use the FMCSA information available to help make sound business judgments.”

This is problematic for a number of reasons. First, this abdication of the safety rating regulations is unacceptable and leaves shippers and brokers in the precarious position of not having clear guidelines in what should be an area that is federally preempted. When the FMCSA approves a carrier for operation that should end the determination. There is nothing in the rulemaking to appoint shippers, brokers and plaintiff’s lawyers as the entities for qualifying carriers.

Further, with only 200,000 of the 525,000 active carriers having even one scored Basic, shippers and brokers are without data to make decisions as to the other 325,000 carriers.

In summary, the five-year plan along with recently issued positions on CSA/SMS should concern shippers and brokers as well as carriers. All of the parties in the “transportation life cycle” should contact their representatives and demand FMCSA do its job of qualifying carriers to operate on the roads of the United States.