SPECIAL REPORT: FMCSA performance criticized by Senate committee

| 7/16/2008

Wednesday, July 16, 2008 – Most kids would be finding a way to dodge the folks if they were coming home with a report card like the one just handed to the FMCSA by the Senate Appropriations Committee.

The Federal Motor Carrier Safety Administration isn’t doing too hot a job safeguarding the nation’s highways by regulating the motor carrier industry – and the agency isn’t living up to the job according to the report.

The Committee recently recommended funding levels for 2009 in the Transportation-HUD and Related Agencies Appropriations Bill. Along with each appropriations bill, the Committee issues a report that basically explains its recommendations.

The report on the Transportation-HUD appropriations bill is very critical of FMCSA and its performance of regulating the trucking industry.

“Unfortunately, FMCSA has shown a pattern of undermining its safety mission by proposing weak regulations and failing to provide adequate oversight and enforcement of existing regulations,” Committee members wrote in the report.

“FMCSA’s performance has been criticized not only the Committee, but by the DOT Inspector General, the Government Accountability Office, the National Transportation Safety Board, as well as the courts.”

Even though some of the programs criticized are in the rulemaking process, the efforts of FMCSA seem to fall short of pleasing Committee members.

Hours of Service
Right off the bat, the Committee members point to the long, storied road of the hours-of-service regulations.

The report briefly outlines the various versions of the regulation introduced since 2003 and the ensuing court challenges. The 2003 rule was tossed by the court as being “arbitrary and capricious.” The revamped 2004 rule was also successfully challenged in the court and two key provisions – the 11th hour of driving and the 34-hour restart – were tossed on procedural grounds.

FMCSA is in the process of apparently justifying both the 11th hour and the restart. A final rule is expected in late 2008.

And the Senate Appropriations Committee makes it fairly clear that the members think that two strikes in the courts on HOS is enough.

“The Committee expects that, after having the rule struck down twice, the agency will finally issue a rule that provides clear and consistent guidance to the industry and truly protects the safety of drivers and the driving public,” Committee members wrote in the report.

CDL qualifications
Adding to its own criticism of FMCSA, the Committee’s report reviewed some criticism published by the Department of Transportation Office of Inspector General.

The OIG regularly examines the programs and policies of agencies such as FMCSA. Currently, there are 11 open recommendations for FMCSA to tend to that are classified as “key” by the inspector.

One of the recommendations includes strengthening and clarifying elements of the commercial driver’s license programs, such as the testing for CDL knowledge and qualification and training requirements for CDL examiners.

FMCSA is now moving forward with a rulemaking addressing CDL programs. But not quickly enough to suit the Committee.

The OIG made the recommendation in 2002, and it’s still open.

“The Committee is troubled by the agency’s slow response to reforming such a critical program,” senators wrote in the report.

Drug testing
The report then takes a whack at the agency using a report issued by the Government Accountability Office on the shortcomings of the commercial vehicle driver drug testing program.

“The GAO also uncovered deficiencies in the FMCSA’s drug testing of commercial truck drivers,” the Senate Committee report states.

Investigators posed as drivers and visited several collection sites in the course of the investigation. Of the 24 sites visited, 22 were not in full compliance with protocol covering sample collection. The GAO’s report also stated that drivers who test positive can often gain employment with another employer without the positive tests being identified.

The GAO recommended FMCSA establish national database of positive test results and refusals to test.

Even though FMCSA is in the process of revamping the drug testing programs through the rulemaking process, the Senate Appropriations Committee wants a letter from the agency by April 1, 2009, telling them of the timeline for implementing the national database.

The funding
The Senate Committee also questioned FMCSA’s success in overseeing the health of commercial vehicle drivers; promoting compliance with the regs by motor carriers through the inspection process; and targeting high-risk motor carriers.

While the report gives credit for advancements of rulemakings in these areas and the creation of a database that is intended to fine-tune the inspection process, FMCSA’s past performance in regulatory development and oversight hurt its funding for 2009.

The Committee allocated nearly $9.2 million for regulatory development and oversight. That is $1.5 million less than in 2008 and $500,000 less than requested.

“As the Committee has noted, FMCSA has continually put out rules that are struck down by the Courts,” the report states.

“Since the agency proposes rules that continually fail to meet the intent of important safety mandates and instead develops rules with data and processes questioned by the courts, the Committee agrees with the Department’s decision to cut funding for this activity.”

– By Jami Jones, senior editor